Published on September 9th, 2015 by Alan L. Sklover
“I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.”
– Steven Wright
ACTUAL “CASE HISTORY”: Charlene, a furniture designer, had been with her employer for seven years. She was happy in her job, was well-liked, and quite productive. Her job was a short commute from home, and her manager was family-friendly. All was good.
One morning she received an email from the Human Resources Director, addressed to all of the company’s 150 employees, advising them that the company was updating all of its employment practices, and for this reason all employees were required to sign an updated “Confidentiality and Inventions Agreement” to safeguard the company’s trade secrets and proprietary information. (Rumor had it that a private equity firm might be interested in buying Charlene’s employer, and it was for this reason that a new, revised Confidentiality and Inventions Agreement was being required.)
The agreement was six pages long and contained a lot of complicated legal language. Charlene thought she understood it, but there was a lot “legalese” in it. She considered having our firm review it with her, but knew it would cost her a consultation fee of hundreds of dollars. When she called, she mentioned the unfairness of her employer requiring her to pay to review a document that they needed, not her.
We suggested she simply ask for the cost to be reimbursed. Sure enough, she did. After a few emails back and forth, her employer agreed to treat it just like any other business-related expense. Charlene was pleased. We were pleased, and now we suggest all employees in this situation do so. You never know. Sure is worth a shot.
LESSON TO LEARN: If you don’t ask, you won’t get. So long as any workplace request has the “Three R’s,” that is, it is (i) Respectfully presented, (ii) Reasonable in what is sought, and (iii) is based on a sound and logical Rationale, there really is no downside to making it.
The logic is simple: When someone wants something from you, and even moreso when they need it, there is nothing wrong with asking for something in return, especially the amount of money it will cost you to provide it for them.
Who knows? You might just get what you want. In this context, your chances are pretty good. Why not give it a try?
WHAT YOU CAN DO: In most – but not all – workplace instances of your employer asking you to sign an agreement, consider asking, in return, before you sign the agreement, that your employer agree to reimburse you the cost of an attorney’s review and consultation. Here are some tips in doing so:
1. For which agreements can I ask my employer to reimburse my cost of an attorney’s review? (a) It is entirely appropriate to ask for the cost of legal review for any and all “amendments,” “modifications,” “updates” or “revisions” to any existing workplace agreement, because it changes the “rules of the game,” and it actually requires that two agreement be reviewed – old and new – to determine those “game changes” being made.
(b) Those agreements for which it is particularly reasonable to ask for reimbursement of legal expense are those that are presented to you during your employment, such as: (i) new non-compete and non-solicitation agreements; (ii) new confidentiality and invention agreements; (iii) new agreements regarding retention of your services; (iv) new agreements requiring you to give a minimum amount of pre-resignation notice; (v) new arbitration agreements; (vi) any kind of settlement or waiver agreement; and (vii) a severance agreement presented to you upon employment termination. This list is not exhaustive.
(c) Agreements for which it may not be reasonable to ask for legal fee reimbursement include (i) an employment agreement upon the beginning of new employment, (ii) an agreement that you are requesting of the employer, and (iii) an acknowledgement that you received a document, such as an Employee Handbook or a Performance Improvement Plan.
2. How much should I ask to be reimbursed? Depending on the type of agreement, your income level, and your geographic location (large city attorneys usually charge large-city prices), the fee for review and consultation of a workplace-related agreement should be between $250 and $750.
Expect a fee on the higher side if your agreement refers to or “incorporates by reference” any other agreement or benefit plan, as this would require that each of these other agreements be reviewed, as well, because they hold meaning in the interpretation of the original agreement.
3. To whom at my company should I direct my request for legal expense reimbursement? In almost every employment negotiation context, I recommend that you do NOT present your requests to Human Resources or internal Legal Counsel. The reason is that these people are not generally “true decision-makers,” and will always defer to the “true decision-makers.” So, we almost always recommend that you direct your requests to the “true decision-makers,” who are usually your managers.
This context is different: When you are asked to sign a new Confidentiality Agreement, Non-Compete Agreement, or what is called a “Garden Leave” Agreement, it is a Human Resources matter and getting it done is the job of – and is needed by – Human Resources. This places Human Resources in the “true decision-maker” category in this context, and so your request should be directed to your employer’s Human Resources Director.
Workplace Document Confusing? Get Your Workplace Document Explained to You with 30 Minutes to Ask Questions. [click here.]
4. How should I go about asking for reimbursement of legal review expense? I suggest that almost all requests for things at work should be (a) in writing, (b) directed by email, (c) respectful in tone, and (d) filled with good reasons for asking. Your request should be made promptly after you are presented with an agreement of any kind to sign.
It should be brief, friendly and to the point, but needs to contain good, persuasive, reasonably-sounding “arguments.” The best reasons for asking for a request for legal fee reimbursement are that (i) the company is asking you to sign an agreement, (ii) you are not a lawyer, and (iii) you are very concerned about signing something you don’t understand.
Our view is that asking for reimbursement of your legal expense to have an agreement reviewed should be treated just like any other business-related expense: simply put, it is work-related, so it should be reimbursed.
5. What should I do if my request is denied? If the response to your request is “No,” then you have three options before you: (1) accept the response, have an attorney review the agreement for you, and accept the expense; (2) respond to Human Resources along the lines of “I am signing the agreement even though I do not understand it”; and (3) respond to Human Resources along the lines of “I do not understand it, I can’t afford an attorney right now, and I will get back to you as soon as I can afford the expense.” Note that this last response is not a refusal to sign the agreement, but it could have negative consequences. That is a matter of risk to you that only you, and perhaps your attorney, will have to weigh.
Reluctant to ask? We understand. Not asking? We don’t understand. Done correctly, you should have no downside to making the request.
P.S.: Employer ask you to sign an agreement? Use our Model Letter to Request Legal Cost Reimbursement. Why Not? When done right, there is no downside, and only upside for you. After all, it’s their agreement, their business, their request, and is needed for the business’s interests. “What to Say, and How to Say It.™ To obtain your copy, [click here.] Delivered by Email – Instantly!
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. Requesting employer reimbursement for agreements to be signed is one small – but not insignificant – step in that path to job and career success.
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 Email 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.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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