Published on March 20th, 2012 by Alan L Sklover
“I know that you believe you understand what you think I said,
But I’m not sure you realize that what you heard is not what I meant.”
- Robert McCloskey
ACTUAL CASE HISTORIES*: Misha contacted our office to make a “resignation plan.” She had been offered a great new job, and wanted to make sure she “cut her ties” without “burning her bridges.” Her primary concern was that, since she had agreed to give her present employer at least 90 days prior notice of leaving, her new employer might not keep its job offer open for that long a period of time. She felt like she was between the proverbial “rock and a hard place.”
Here’s the exact language of her employment agreement. Read it over, and ask yourself this question: How much “notice” does Misha have to give her employer?
You or the Bank may end your employment relationship by giving NOT LESS THAN three months’ prior written notice of termination to the other, which time period will be called the “Notice Period.”
So, this is the question: How much “notice” must Misha give her employer: Three calendar months? Ninety days? Ninety-one days? Some other amount of time? The answer is actually quite clear: zero. By the words of this provision of her employment contract, neither Misha nor her employer has to give the other any prior notice whatsoever of ending the employment relation. Not a single minute. Yes, that is what the words say.
The reason for this result is the use of the word “may” in the first sentence. It is a drafting trick. In both the law and common usage, the word “may” means the same as “may or may not.” Its nature is “permissive,” not “mandatory.” It permits an action to be taken, but does not require it. It imposes no obligation whatsoever. It is synonymous with “is permitted to.” It does not mean “is required to.”
It would be an entirely different matter if the first sentence said “You or the Bank SHALL end your employment relationship . . .” or “You and the Bank WILL,” or “You and the Bank MUST.” “Shall,” “will” and “must” are not “permissive,” but rather “mandatory” in nature. They impose obligations, and are synonymous with “are required to.”
Is it possible that Misha’s employer simply made a mistake in drafting this provision? Sure, but not at all likely. In several other places in Misha’s employment agreement, even in “neighboring” paragraphs, we find the words “shall,” “will,” “must,” “agrees to,” and “is required to,” all of which are “mandatory” in nature. If the drafter of Misha’s employment agreement knew how to use the words “shall, will, must, agrees to, and is required to,” surely he or she could have used any of those words or phrases in the notice provision above.
How about the “NOT LESS THAN” language; doesn’t that mean anything? Simply put, no. Insertion of such language is a mere drafter’s trick intended to distract the reader’s mind and mislead the reader into focusing on the wrong words. I bet it probably tricked you, no?
Could Misha’s employer claim, “That is just an error. Misha knew what it meant?” Sure, but they would be 100% wrong; the words used are the words used. There are no “do – overs” in law. And, too, the employer wrote the agreement and is surely bound by it – exactly as it is written.
The truth is this: employers often use the “may – shall trick to give the employee a false impression: that he or she MUST give a long period of notice, when the employer knows that, when it gives notice of termination, it is NOT, itself, bound to do the same. Not only does the employer get a distinct business advantage by “getting but not giving” notice, but the employer gets an even stronger advantage because this discourages many good employees from even trying to leave for better jobs elsewhere, fearing that new employers simply won’t wait that long for any candidate. Gaining advantage at no price is part of what business is all about.
Besides “notice” clauses, the “may – shall trick” often appears in other contract provisions, as well. How about this example regarding company benefits:
“The Employee will participate in all benefit, welfare and bonus programs the Employer may offer to its employees.”
Observe that the Employer does not have to offer any benefit, welfare or bonus programs to its employees. This is seen most often in new start-up companies where, for example, employer-provided health insurance and other benefits “may or may not” be offered for years, despite employees’ expectation that they will receive such benefits. Ouch!
When we explained the “may – shall trick” to Misha, and showed her the words of her agreement, she saw that she was 100% free to change jobs whenever she wanted to. She was 100% relieved: her biggest obstacle in transitioning from her present job to a better job suddenly “disappeared,” like magic, just by her being wise to the “may – shall trick.”
LESSON TO LEARN: When it comes to agreements, in general, and employment agreements in particular, every word counts. In fact, every punctuation mark counts, too. There is simply no substitute for carefully reading every word, and keeping your mind focused not only on “What does this say?” but also on “What does this mean?” Get into the habit of asking yourself, “Why did they use this particular word?”
This is particularly important with “may” and “shall.” Are you (or your employer) “permitted” to do something, or are you (or your employer) “required” to do it? Be wise to the important difference between the two, and be wise, too, to the “may – shall” trick intended to fool you into believing there is no difference.
WHAT YOU CAN DO: Whenever you review an employment agreement or other employment-related document, to avoid the “May – Shall” Trick:
1. Read Carefully. – Although many lawyers write in a way that seems either undisciplined (a product of simple incompetence) or intended to confuse (a product of outright dishonesty), don’t be intimidated by words in a contract, even if those words are “legalese.” / Try to make sense of what you read, and what your rights and obligations are. / If something doesn’t make sense to you, ask what it means, and ask if it can be reworded so that the average person can understand what it means. / In figuring out what contract language means, it might be easier to “parse” each sentence, that is, isolating it, and reviewing its meaning separately from all others. / It is a “tree instead of forest” approach. / Notice how I have placed slash marks, (/), between each sentence in this paragraph. / I often use a pen to do that, and I find it dispels confusion when I am reading an agreement, and determining its meaning.
2. Look for “Will/Shall” (mandatory) and “May” (permissive) – or similar words – attached to every contractual right and obligation, of both employer and employee. – Keep a sharp eye out for the mandatory words (will, shall, must, agrees, is required, etc.) and the permissive ones (may, should, is eligible, will consider, etc.) Every obligation, every right, and every expectation of both the employee and the employer in an employment agreement will have words attached to it that make it one or the other – mandatory or permissive. When analyzed in this way, it’s really not too hard to decipher which one it is.
3. Don’t be afraid to ask for a change in the wording of an agreement, depending on whether the present wording or other wording is in your best interests. – Let’s consider Misha’s situation, above. Let’s say that, when she started her job at the Bank, she noticed that the “resignation notice” provision used “may,” and thus did not actually require either she or the Bank to give each other any pre-termination notice. In general, I would usually tell a client “This will make it easier for you to take a new job than it would be if you had a 90-day notice requirement.” While requiring both the employee and the employer to give a 90-day notice of termination might seem to be a little bit of job security, and thus, helpful to the employee, I would think the employee’s freedom to leave when he or she wants would usually be more valuable. But that is an individual preference.
On the other hand, if the employment agreement said “Employee may be eligible for a bonus at the end of the year,” I would much rather see it say “Employer shall pay” or “Employee will receive.” I would think a “mandatory” obligation about bonus would surely be in the employee’s interests, and thus worth asking for clarity in the wording. The same thing goes with “The Employee may expect a promotion.” It is not an obligation, but a mere expectation, which is not mandatory or required. In that case, I would rather see the words say, “The Employee WILL receive a promotion.”
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work and in career. Negotiation and navigation of work and career issues requires that you think “out of the box,” and avoid risks at every point in your career. Knowing ways to lower and eliminate risks gives you a distinct advantage in navigating workplace life. Knowing ways to avoid and resolve disputes is even more advantageous. Positioning yourself to obtain maximum advantage is perhaps most important. Learning the “in’s and out’s” of doing so is what we are here for. Now it’s up to you.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
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