Amanda DeMatteis: Hi, Josh.
Josh Goodbaum: Hi, Amanda. What are we talking about today?
DeMatteis: Like so many things that we discuss in employment law, we talk about the difference between being proactive and reactive, right? A lot of the time in this arena, it’s much better to be proactive. So, I thought we would do a little bit of role-play.
Let’s pretend I am a potential client. I’m an employee in Connecticut, and I come to you and I say, “Attorney Goodbaum, I’m thinking about moving across the country for a job. What do I do? How do I protect myself?” What can you share with us?
Goodbaum: What I want to talk about, Amanda, is:
Have you really thought this decision through? You’re so wise to talk to an employment lawyer on the front end. Let’s make sure that you are protecting yourself from what hopefully won’t but could go wrong in this situation.
So, what do you think you’re getting from this employer out west? And do you have in writing the things you’re getting from them? And do you have it in the form of a contract – a contractual promise that you can, if necessary, take to court? Let’s look through that document together. And let’s make sure that document also includes what happens if something goes wrong.
Is this employer out west promising you, for example, that they’re going to pay you a reasonable severance if they terminate you “without cause”? And is the definition of “cause” reasonable to you, such that, you know, if they just change their minds, you’re going to get that severance? And have they promised you, for example, that if you don’t stay for a certain amount of time or they terminate you within a certain amount of time, they’ll pay your expenses to move back to Connecticut where — I know you, Amanda so I know – you’ve lived your whole life?
Let’s, in particular, focus on that contract that they’ve given you – assuming they’ve given you a contract – because we want to make sure that everything you think you’re getting is in that contract. You’ll see that, in that contract, there’s a clause right at the end. It’s in the legalese that often doesn’t make any sense to most non-lawyers. It’s called a “merger clause” or a “total agreement clause.” And what it says is, “Amanda, you’re not relying on anything anybody promised you except for what’s written in this document, right?” So if the talent recruiter or the head hunter came to you and said, “Oh, Amanda, this is gonna be such a great job for you out west; you’re gonna make millions of dollars; it’s gonna be wonderful; I love this company; don’t worry; everything’s gonna be fine,” and you feel like you’ve really built up this opportunity, and what the head hunter or the recruiter promised you isn’t in writing in the contract, there’s no way for you to enforce it after you move out there and things go wrong. That’s the power of a “merger clause” or a “total agreement clause.” And it’s why we want to make really sure that what’s written in this contract is what you believe you’re getting.
Now, you wouldn’t be moving out west if you didn’t have a good feeling about this company, if you didn’t on some level trust the folks who are out there recruiting you. But you’ve heard the expression “trust but verify”? The purpose of a contract is to make sure that you’re protected in the event something goes wrong. I think of an employment contract as setting the terms of a divorce before the wedding. You need to know if you’re thinking about getting out of a marriage, what that’s going to look like — both because it tells you what you’re going to get and because it defines who’s got the power in the relationship. And just as that’s true of a prenuptial agreement, it’s also true of an employment contract.
So think about that as you’re getting into this job. And I wish you the best of luck. I hope this works out for you.
DeMatteis: And Josh, what about if I’m being reactive and I’ve already moved across the country? I didn’t trust but verify, and now I’m calling you and I’m saying, ”Hey, I moved all the way out here. I don’t have a contract, and it’s not working out.” What do I do?
Goodbaum: I mean, Amanda, I’m sorry, I don’t think there’s anything I can do to help you. You’re there now. You’re an at-will employee. They’ve changed their minds. Just as you were free to leave if you wanted, they were free to terminate your employment. And now you are where you are.
I understand they made all these representations to you, but the representations – we could talk about what they sounded like, but they probably are not sufficiently definite to have formed a verbal contract that we can make a claim on.
So, without a written contract or with a written contract that doesn’t promise you enough, there’s probably very little I can do to help you. And that’s why it’s so important to be proactive when getting into a job, particularly if you’re making a big sacrifice for that job, like giving up another job you love or moving across the country to accept it.
DeMatteis: So, we hope this illustration has really shown you the difference between being proactive in employment situations and being reactive in employment situations. As always, if you have questions, reach out, give us a call. Thanks so much for watching. See you next time.