Re: Unusual Employment Agreements

Subject: Re: Unusual Employment Agreements
From: "Jason A. Czekalski" <topsidefarm -at- mva -dot- net>
To: techwr-l -at- lists -dot- techwr-l -dot- com
Date: Thu, 21 Dec 2006 10:15:42 -0500

Was talking to a lawyer friend of mine this morning (he is helping me set up my own writing agency), so I passed this one by him. He got a good laugh out of it. His advice was to run far, far away, as fast as possible.
His take is that this is a penalty that the client company is assessing against the agency, so the agency is trying to pass it off to the employee. He stated that in a 1099 situation, this would be perfectly legal. However, a W-2 situation is totally different. Among the points he made were:
1. This would be totally illegal in all of the at-will states in the U.S.
2. It would be of questionable legality in any of the non-at-will state. Even if it were legal, the employer would have a tough time enforcing it unless there was similar terms that applied to the employer. The concept from contract law is "mutual detriment".
3. In most the at-will states, even asking you to sign such a contract could subject the agency to fines and sanctions from the state department of labor.
4. In many of the at-will states, the employee could possibly collect damages from the agency if it ever attempted to actually use these clauses.
5. In a few of the at-will states, the employee could be entitled to damages for just having been asked to sign such a contract.

These are just the broad legal concepts. YMMV, as labor law varies greatly from state to state. However, the one universal fact that applies in all states is that there is some level of illegality in these clauses.

As for negotiating, or rewriting the contract, that is do-able. However, he advised against it. His take is that there will be some form of problem with the agency in the future. Either they are working with a lawyer who has few/no scruples, or they are copying someone else's boilerplate having no idea what any of it means. Either way, it's not a good thing.

Jason A. Czekalski

> From: Richard Lewis <tech44writer -at- yahoo -dot- com>
> Subject: Unusual Employment Agreements
>
> Hi all:
>
> An agency just email me an employment agreement to sign with two unusual clauses:
>
> 1.) I agree to pay the agency $2000 if I sign the agreement and then change my mind and do not show up to start work.
>
> 2.) I agree to pay the agency $2000 if I leave the contract job before it is scheduled to be completed.
>
> Have you had any experiences with employment agreement clauses like such? Thoughts?
>
> Thanks,
>
> Richard Lewis

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