“The large print giveth and the small print taketh away.”
– Tom Waits

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Be Skeptical of the word “Guaranteed” − After recruitment discussions, clients often call and report that they have been offered “guaranteed” bonus, “guaranteed” severance, perhaps “guaranteed” profit share, equity vesting or commission payout. I’m always a bit skeptical, and often respond with “Well . . . let’s see what the ‘fine print’ says.”

Examples:

─ “Guaranteed” bonus . . . even if the “At Will” employee is terminated the month, the week or even the day before bonus payments are distributed to others? Not likely.

─ “Guaranteed” commission rate . . . even if Management elects to exercise its “sole discretion” given it by the Commission Plan to lower commission rates? Improbable.

─ “Guaranteed” annual “all in” comp for a calendar year. . . even if your team’s annual revenue production has cratered below expectations? Chances are slim.

─ “Guaranteed” severance even if your employer’s lawyers claim that you violated some arcane Company policy, and are thus being discharged for “Cause?” Do not bet on it.

─ “Guaranteed” profit share when the words “profit” and “share” are not defined. Dubious at best.

Need I say more? I expect not.

The word “Guaranteed” is comforting, assuring, calming, composing. Like the comedian Bob Hope used to say, “I don’t even like money . . . it just calms my nerves.” Employers’ lawyers almost always incorporate hidden or disguised “trap doors” and “wiggle room” into Compensation Agreements, Offer Letters, Compensation or Equity Plans and other workplace documents . . . even Employee Handbooks.

1. When you read “Guaranteed,” think “Guaranteed Unless.” − In employment and compensation agreements, contracts and offer letters, the word “Guaranteed” needs to be read as “Guaranteed Unless . . .” and the “unless-es” need to be identified, narrowed and perhaps removed or overridden. That’s because trap doors, loopholes and “wiggle room” are often viewed as the “art” of lawyering, most especially when compensation is involved. And that is not a criticism of lawyers; I think it is their job to do what they can to promote their clients’ interests.

2. Then try to Minimize the Number and Effect of the “Unless-es” − Once risks are identified, they can be minimized, or even eliminated, in several different ways, limited only by your perception of value to employers and your (or your lawyer’s) creativity. Among those ways are (i) outright elimination of the “trap door” clauses, (ii) replacement of the word “may” with the word “shall,” (iii) suggesting alternative rewards that are to be provided if the so-called “guaranteed” comp does not materialize, (iv) requesting “no less favorable treatment” to that provided to higher-ups, even (v) penalty provisions to “de-motivate” those who may be inclined to view the word “Guaranteed” unfairly.

3. Remember the “Three R’s” of making any Request – Remember that “Request” starts with “R,” and thus needs to be made with (a) Respect, (b) Reasonable “Ask,” and (c) presented with a Rationale that makes simple sense.

4. What’s the Wisdom? – The insight is this: Remember to (i) read “Guaranteed Unless” when the singular word “Guaranteed” is found, and then to (ii) devote your attention to the “unless-es” of the agreement or document, and finally, to reduce or eliminate the risk.

Our Insight is Your Advantage.™ That we can comfortably guarantee you.