News and Articles

Legal Update - December 2017 Newsletter

Yogi Patel - Friday, December 01, 2017

Dear valued clients and supporters: This month's newsletter will focus on a new law that impacts NYC employers and employees in the fast food and retail industries. The law went into effect on November 26, 2017.

Under the Fair Workweek Law, fast food employees have the right to:


1. Good Faith Estimate of Schedule:
On or before workers’ first day of work, employers must provide written schedules for the first two weeks of work with hours, dates, start and end times of shifts and written “Good Faith Estimates” (days, times, hours, locations you can expect to work during your employment). Employers must provide an updated estimate if the estimate changes.

2. Advanced Notice of Work Schedules:
Employers must give workers their written work schedule at least 14 days before their first shift in the schedule. Schedules must include at least seven calendar days with dates, shift start and end times, and location(s) of all shifts. If the schedule changes, employers must contact all affected workers within 24 hours, or as soon as possible.

3. Priority to Work Newly Available Shifts:
Before hiring a new employee when new shifts become available, employers must advertise shifts to existing workers in NYC first by: 1) posting information at the worksite where the shifts have become available and by directly providing the information to workers electronically, which may include via text or email; 2) giving priority to work open shifts to workers at the worksite where shifts are available; 3) giving shifts to interested workers from other worksites only when no or not enough workers from the worksite accept. Employers can only hire new workers if no current NYC workers accept the shifts by the posted deadline.

4. Consent Plus $100 for “Clopening” Shifts:

Employers cannot schedule workers to work two shifts over two days when the first shift ends a day and when there are less than 11 hours between shifts (a “clopening”) UNLESS workers consent in writing AND are paid a $100 premium to work the shift.

Under the Fair Workweek Law, retail employees have the right to:

 

1. 72 Hours’ Advance Notice of Work Schedule:
Employers must give workers their written work schedule at least 72 hours before the start of the schedule in the way the employer usually contacts workers, which may include via text and email. They must post the schedule at the workplace where all workers can see it. This schedule must include dates, shift start and end times, and location(s) of all shifts in the work schedule. If the schedule is changed, employers must update and repost the schedule and contact all affected workers.

2. No On-call Shifts:
Employers cannot require workers to be ready and available to work at any time the employer demands, regardless of whether workers actually work or report to work; or to “check in” within 72 hours of a scheduled shift to find out if they should report for the shift.

3. No Shift Additions with Less than 72 Hours’ Notice:

If employers want to add time or shifts to your schedule less than 72 hours before the change, workers have the right to accept or decline the change. If workers accept an additional shift, they must do so in writing.

4. No Shift Cancellations with Less than 72 Hours’ Notice:

Employers cannot cancel a shift less than 72 hours before the start of the shift except under the following circumstances: threats to worker safety or employer property, public utility failure, shutdown of public transportation, fire, flood, or other natural disaster, or a government-declared state of emergency. However, workers may trade shifts voluntarily.

 

Employers are advised to tailor their policies accordingly.


Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 


Legal Update - November 2017 Newsletter

Yogi Patel - Thursday, November 02, 2017

Dear valued clients and supporters: This month's newsletter will focus on a significant law that impacts most NYC employers and employees that went into effect as of this morning (October 31, 2017).

NYC Salary History Law

Subdivision 25 to the NYC Administrative Code (Section 8-107) went into effect this morning. Under this new law, employers are prohibited from inquiring about or relying on a prospective employee's salary history prior to making an offer. As a practical matter, this new law changes how salaries are typically set and negotiated. The law is complex and broad reaching. Not only does it apply to direct employers, but agents, recruiters and headhunters. The liability flows through to all parties involved in the hiring process.

The law governs compensation broadly, meaning what type of questions an employer may ask about the prospective employees unvested equity, deferred compensation, commission, bonuses or percentage of profit - in connection with their prior employment - before making an offer of their own. The law does not place restrictions on how an employer may utilize prior salary history if it is "volunteered" by the prospective employee, however, the law prohibits the employer from "prompting".

The New York City Human Rights Commission is charged with enforcing the law and the penalties for violating the Act can include a civil penalty of $250,000.00, compensatory damages, attorney fees, hiring or reinstatement, award of back and front pay.

In order to comply with the law, employers should consider focusing questions on an applicants’ salary demands, skills, and qualifications during the hiring process instead of questions about prior compensation; Consider revising job applications and other forms to ensure that the form does not include questions about applicants' salary history (even if such questions are framed as "voluntary"); And finally appropriately train interviewers and modify written polices prohibiting inquiries about applicants' salary history.

For employers that engage headhunters, recruiters or agents - and intend on relying on representations made by headhunters, recruiters or agents that the applicant has consented to the disclosure of the applicant's salary history when engaging in negotiations on behalf of the applicant, employers should consider obtaining written authorization of release of salary history information directly from the prospective employee before relying on the representation of headhunter, recruiters or agents to mitigate their liability.

Employees should consider utilizing this law to their benefit when engaging in salary negotiations. Some employees, specifically executives whose compensation includes stock options and vesting restrictions may voluntarily discuss the impact of their prior employer's policy on their compensation pertaining to options - without "volunteering" other aspects of their compensation (base pay, commission, bonus).

Employees who are faced with impermissible questions about salary history, during the heat of the moment, might consider responding as follows (suggested by NYC Human Rights Commission):

  • In response to a question about what you currently make, you can reframe the issue in terms of your salary expectations or demands and not disclose your salary history.
  • Indicate that you’d like to discuss your compensation based on the requirements and responsibilities of the job for which you’re applying, which may differ from your prior work.
  • Reframe the question to focus on the value you can bring to the job and what you can add to the company, rather than on what you made previously.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

Legal Update - October 2017 Newsletter

Yogi Patel - Tuesday, October 10, 2017

Dear valued clients and supporters: This month's newsletter will focus on three significant employment law cases that are expected to be decided by the United States Supreme Court this term. The cases will address: (1) the enforceability of mandatory class-action waivers against employees; (2) the constitutionality of mandatory public-sector union fees; and (3) whether or not car service advisors are exempt employees under federal law.

Mandatory Class Action Waivers

 It has become increasingly common for employers to require employees to sign arbitration agreements as a condition of their employment. Such agreements seek not only to require the employees to seek any redress via arbitration, but also to prohibit the employees from bringing their claims together in a class action. Presently, in three separate but related cases, the Supreme Court will decide whether these employee arbitration agreements are enforceable because they require employees to waive their collective bargaining rights. While similar agreements have been upheld in the consumer context, Circuit Courts across the country have reached different conclusions as to whether employee arbitration agreements are enforceable, thus requiring the Supreme Court to settle the debate. As the Supreme Court's decision will have significant ramifications either on employees' rights to take collective action or on the enforceability of employment agreements, both employers and employees are advised to monitor the outcome of this decision.

Public-Sector Union Fees

 In another case on the current docket, the Supreme Court will address whether requiring public-sector employees to pay certain union fees violates their constitutional rights. Dating back to 1977, in the case Abood v. Detroit Board of Education, the Supreme Court has held that compulsory union dues were not unconstitutional so long as they were used for actions such as collective bargaining and grievance procedures and not for political activity. Recently, the Supreme Court was asked to reconsider the constitutionality of all mandatory union dues for public-sector employees, but Justice Antonin Scalia passed away before a decision was reached, leaving the Court deadlocked at a 4-4 vote. Now, with nine members again presiding, it appears the Court is now poised to issue a decisive ruling on this issue. Unions in particular have a strong interest in this case as it could result in the depletion of a significant source of revenue for them.

Car Service Employee Overtime Exemptions

 Finally, the Supreme Court is expected to resolve the question as to whether or not car dealership service providers are exempt from mandatory overtime requirements. The case is significant not only because of the narrow issue it will resolve regarding the exemption status of certain workers, but also in that it may provide additional guidance as to how much weight courts should give to the statements and opinions of agencies, such as the Department of Labor ("DOL"). The history of the service advisor exemption is essential to appreciating the significance of the current case. In 1966, Congress enacted an overtime exemption for car salesman and related employees, though service advisors were excluded by regulation. Courts later rejected this regulation and the DOL issued an opinion letter agreeing that service advisors could be exempt from mandatory overtime. Then, in 2011, almost 50 years later, the DOL reversed its position and stated that service advisors were not exempt. In 2012, five service advisors from California filed suit against their employer for failing to pay them overtime, a claim which was upheld by the Circuit Court. The Supreme Court then vacated the decision on the basis that the DOL's reversal of its position meant that courts should not rely on it. The case was sent down to the lower courts, made its way back up to the Circuit Court, which again concluded that the workers were nonexempt. Now the Supreme Court will rule again. Most experts expect that the Court will not only rule definitively as to whether or not service providers are exempt from overtime requirements, but also when Courts should rely on agency opinions more broadly.

 

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.


Legal Update - June 2017

Yogi Patel - Thursday, June 08, 2017

Dear valued clients and supporters: This month's newsletter will focus on three significant updates to New York City Law: (1) the Fair Work Week legislation; (2) the Freelance Isn't Free Act; and (3) the ban on asking prospective employees about their salary histories. A more in-depth article on all three of these topics will be posted on our website next month.

Fair Work Week Legislation

At the end of last month, the New York City Counsel passed the comprehensive Fair Work Week legislation into law, which provides additional protections and rights to fast food and retail industry employees. The legislative package consists of five bills that aim to give low-wage fast food and retail workers greater predictability around their schedules and their weekly pay. For example, one of the laws requires fast-food employers to provide at least 2-weeks' notice to employees of any schedule changes and to compensate workers for any last-minute alterations. Additionally, employers must also provide good faith estimates of weekly hours to new employees and offer any shifts that open up to current employees before making any hires. Overall, the new legislation is keeping pace with other major cities, like Seattle and San Francisco, aiming to protect its more vulnerable workers. Employees and employers are advised to fully understand their rights and obligations before the new law goes into effect later this year.

Freelance Isn't Free

On May 15, 2015, the Freelance Ins't Free Act, which provides enhanced protections and rights for freelance workers, went into effect. Specifically, freelancers are now entitled to insist on working pursuant to a written contract, receive additional damages from clients who do not pay, and are better protected from being retaliated against for enforcing their rights. The law allows for freelancers to file a complaint with the Office of Labor Policy Standards or to file private suit against individuals and businesses who violate their rights. Overall, particularly by allowing freelancers to recover attorney's fees if they file in court, the new law creates meaningful remedies for freelancers who might not otherwise have had the resources to pursue claims on their own. Freelancers and businesses that engage freelancers are advised to fully understand their rights and obligations under this new law.

Employee Salary Histories

On May 4, 2017, a bill that prohibits New York City employers from asking prospective employees about their salary histories was signed into law. The law now makes it an unlawful discriminatory practice for an employer to ask about an applicant's prior pay during the hiring process or to consider the prospective employee's salary history at all in determining how much to compensate the employee. The law, titled Intro. 1253, provides for penalties of up to $250,000 against employers in the most malicious instances and for compensation to aggrieved individuals. The law is set to go into effect in October of this year. Employees and employers alike are advised to fully understand the legislation's requirements and impact prior to its effective date.


Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.


Legal Update - January 2017 Newsletter

Yogi Patel - Friday, January 06, 2017

Dear valued clients and supporters: Happy new year! This month's newsletter will focus on: (1) advertising of short-term rentals on Airbnb; (2) rethinking employment contracts and (3) firm announcements. 

Advertising Short-Term Rentals

Recently, Governor Andrew Cuomo signed legislation that makes it illegal to advertise the rental of an entire apartment for a period of less than 30 days. This legislation comes as part of an effort by lawmakers to crack down on the illegal rental of apartments through online platforms, such as Airbnb. Almost immediately after the bill became law, Airbnb filed suit against the City and the State in protest. While you may have heard that part of that lawsuit has been settled, Airbnb is continuing to press forward with its suit against New York City. A more in-depth article on the new law and contested legislation can be found here on our website

Rethinking Employment Contracts

In our newsletter last month, we briefly suggested reasons why employers should rethink the ways their current employment contracts are structured based on the groundbreaking work of Professor Oliver Hart of Harvard University and Professor Bengt Holmstrom of the Massachusetts Institute of Technology. Now, a more in-depth article on why employers should rethink their employment contracts and some practical suggestions as to how can be found on our website.

Firm announcements

We are pleased to announce the birth of Nigel P. Carraro, who is our associate Kyle Carraro's most recent addition to his growing family. We look forward to Nigel joining the Lloyd Patel roster of attorneys in a couple of decades. Finally, we are pleased to announce that partner Yogi Patel will be returning to his alma mater CUNY School of Law this coming semester as an adjunct professor of law where he will be teaching a course on the Uniform Commercial Code (UCC) and Secured Transactions. 

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 

NOBEL PRIZE WINNERS OFFER CRITICAL INSIGHT INTO DRAFTING EMPLOYMENT CONTRACTS

Yogi Patel - Friday, December 16, 2016

The groundbreaking work of Oliver Hart of Harvard University and Bengt Holmstrom of the Massachusetts Institute of Technology, which includes providing invaluable insight into how employment contracts should be structured, recently earned the two professors the 2016 Nobel Memorial Prize in Economic Science. Hart and Holmstrom’s research offers a variety of theoretical models and frameworks through which they analyze the competing interests of employees, managers, CEOs, shareholders, and others, and attempt to reconcile them via contracts.

Over the past few decades, Homstrom and Hart’s findings have been used to evaluate whether particular contracts accurately measure the performance and value of employees and other agents to companies while offering the right amount of incentive. Specific factors that the research contemplates in its assessment of employment contracts include ownership, control, the measurability of an agent’s performance, risk sharing, and the motivations of the parties involved.

Rather than simply pay an individual a fixed salary or reward a manager for the performance of a company in a vacuum, the professors suggest considering alternative compensation structures and contracting terms, including:

Deferred Compensation

In order to ensure that a company’s interests are aligned with those of an employee, it may make sense to tie an individual’s compensation to performance rather than pay her a set amount. By withholding a portion of an employee’s compensation, the company can provide incentives for the individual to earn the full amount by meeting certain goals. Whether or not this type of arrangement makes sense will depend in great part on the measurability of an employee’s performance and the stability of the business environment.

Performance Evaluation based on the Overall Market

Another metric for evaluating an employee’s value, particularly one who is in a decision-making position, is the overall performance of the company. One common mistake businesses make is setting goals or targets based solely on the absolute performance of the company, rather than taking into account the performance of the company as compared to other similarly situated businesses. If a company does well in a thriving market or suffers during a market collapse, the employee should not be rewarded for good luck or punished for misfortune. A company performing well relative to others is a far superior measurement of employee value.

Designation of a Main Decision-Maker

Most contracts cannot contemplate the exact outcome of every situation that may arise in a given relationship. Companies recognize that it is impossible to list specific instructions for every job responsibility, and this in turn may actually be counterproductive. In such cases, the parties should determine who has the power to decide what to do in situations where they cannot reach an agreement. In this manner, the parties are able to avoid having to anticipate every possible future event while entering into a relationship that allows them to move forward with their main, general purpose, i.e. employment.

While Hart and Holmstrom’s work is highly theoretical and informative, it is essential to use their tools in conjunction with a business’s specific needs. Depending on the business type, number of employees, and variety of other factors, businesses may have widely different terms and compensation structures that work best for them. Notwithstanding this, business owners are advised to consider the research finds of Professor Hart and Holstrom’s when making decisions about their own employees and businesses.

This article was prepared with the assistance of Julie Lee, 3L (CUNY School of Law).

 

Legal Update - October 2016 Newsletter

Yogi Patel - Tuesday, October 18, 2016

Dear valued clients and supporters: This month's newsletter will focus on: (1) trademarking website domain names; (2) impact on a business in the event of a divorce; and (3) rethinking employment contracts in light of the recent award of the Nobel Prize in Economic Science.

Trademarks and Website Domain Names
Contrary to the assumption of many, simply registering the name of a business as a domain name does not give the same protections as trademarking the name itself. Domain name registrants lease, rather than own their website domain names, whereas a trademark grants exclusive use of a particular domain name in commerce nationwide. Thus, businesses who fail to trademark their domain names are much more susceptible to infringement and customer confusion due to another entity using the same or similar name. And many businesses that spend countless resources on their brand (often tied to their websites) could find themselves in a position where they lose their ability to use that domain name resulting from their failure to seek federal trademark protection. For further details on the differences between registering a domain name and a trademark and why businesses should strongly consider the latter, an in-depth article can be found here on our website.

Protecting a Business from Divorce (Updated)
In our newsletter last month, we briefly discussed the need for business owners to prepare themselves in the event of a divorce. A more in-depth article on what steps owners should take to protect their businesses from a divorce is now posted here on our website.

Rethinking Employment Contracts

The most recent Nobel Prize in Economic Science was awarded to two professors for their work on improving the design of employment contracts. At the core of Dr. Oliver Hart and Dr. Bengt Homstrom's study were findings that suggested new ways in which businesses should value their employees' contributions and provide incentives to maximize performance. By restructuring its contracts based upon the professors' research, business can more accurately measure and incentivize their employees' performance and provide compensation accordingly. A more in-depth article on this topic will be posted next month here on our website.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

In a Stark Reversal, the NLRB Rules Columbia University Graduate Students May Unionize

Yogi Patel - Wednesday, September 07, 2016

The National Labor Relations Board ruled late last month that student assistants working at private colleges and universities are “employees” under the National Labor Relations Act and can organize and form a union. This reverses the position of the Board, which ruled in 2004 that graduate teaching and research assistants were not employees, reasoning that the students’ relationship with the school was “primarily educational.”

In reversing its 12-year old position in the Brown University case, the NLRB wrote that it wrongly “deprived an entire category of workers the protections of the [National Labor Relations Act], without a convincing justification in either the statutory language or the policies” of the law.

The proper role of graduate students and their contributions outside the classroom has been a source of controversy and debate for nearly two decades, as both private and public institutions of higher education have grown more and more reliant on them for the institutions to operate. Many see increased use of graduate students and low-paid, temporary adjuncts as part of a movement away from full-time professors, a move that has been criticized by educators and students. Students also point out that such work is mandatory as part of many graduate programs, but the pay leaves some of them living in poverty while the time demands prevent them from obtaining other work to supplement their income without compromising their ability to fulfill academic needs.

Schools, on the other hand, argue that unionization could lead to negotiations about inherently educational factors, such as the length of classes, the content of curriculum, or the method or amount of grading.

The Columbia University ruling allows graduate and undergraduate teaching assistants, as well as graduate and departmental research assistants at Columbia University to join Graduate Workers of Columbia-GWC, UAW, but not before the case is reviewed again by an NLRB Manhattan regional director, who must still determine who is eligible to vote in the union election.

December 2015 Newsletter

Yogi Patel - Wednesday, December 02, 2015

Dear valued clients and supporters: This month's newsletter will focus on: (1) The nation-wide increase in the usage of arbitration clauses in employment agreements; (2) Negotiating a more favorable employment offer/agreement; (3) The "Alter Ego" doctrine; and (4) New York City's Fair Chance Act.

 

Arbitration Agreements
In recent years, there has been a nation-wide spike in the usage of arbitration clauses by employers in their employment agreements. The motivation for employers to include such clauses is that they typically require employees to settle any grievances through arbitration, effectively preventing them from bringing an action in court. The clauses also usually require that all disputes be brought individually, which can have the effect of prohibiting employees from bringing class action suits. In the wake of United States Supreme Court decisions upholding the validity of arbitration clauses that prevent employees from bringing a collective suit, many employers are now requiring that all employees agree to arbitration as a term of employment. Employers and employees are advised to consider the implication of this trend, as employers may seek to include arbitration clauses while employees may seek to negotiate the removal of this term when possible.


Negotiating A More Favorable Employment Offer/Agreement
Many employees may not be aware that when they are offered a new position, they often have significant leverage at their disposal to negotiate for better terms of employment. Prospective employees who bring years of experience or unique skills and knowledge should not sell themselves short at the bargaining table, especially prior to accepting an offer of employment. From increases in salary, stock options and other benefits, to more favorable terms of severance, grounds for termination, and restrictive covenants, employees should consider what they can gain through such negotiations. An in-depth article addressing terms that an employee should consider negotiating as well as how to negotiate effectively so that an employer is not "put-off" by your ask is now available here on our website.


"Alter Ego" Liability
The number one reason why business owners form corporate entities is to insulate their personal assets from the liabilities of the company--if the business has an issue that causes it to owe money, the owner's house, bank account, and other personal property cannot be used to pay the company's debt. However, when a business owner abuses this protection and primarily uses the entity for her own personal gain rather than to transact the corporation's business, a court may find that the business is actually the "alter ego" of the owner. Upon such a finding, the owner and the business are treated as one and the owner's personal assets become at risk. To find out more about the factors New York courts look at under an "alter ego" analysis and the consequences of a determination stripping a business owner of the protections of her corporation, please read a more in-depth article posted here on our website.


New York City's Fair Chance Act
On October 27, 2015, the New York City Fair Chance Act went into effect. The law makes it illegal for employers to ask applicants about a criminal record before making a job offer. The Act bans reference to criminal histories or background checks in employment ads, job applications and during interviews. An in-depth article analyzing the Act and an employers obligations under the new law are now available here on our website.


Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on this and other issues throughout the month.

Negotiating a Better Employment Offer/Agreement

Yogi Patel - Tuesday, December 01, 2015

Introduction

Many employees, especially executive level employees, approach an offer of employment as a “take it or leave it” proposition. The reality, however, is that unless you negotiate, you will end up with terms that are generally skewed and favorable to the employer. As with executives negotiating more favorable severance packages, executives negotiating employment agreements should consult with an attorney prior to negotiating or signing any such document. Once you sign on the dotted line, the executive has effectively given up any leverage in negotiating terms that will directly impact his or her role, compensation, future obligations to the employer, including who and where else they can work next. This article will address some of the terms that we recommend an employee should consider negotiating as well as how to negotiate effectively so that an employer is not “put-off” by your ask.

Will My Future Employer Negotiate?

An executive with an employment agreement in hand is in a strong position to negotiate with the employer for better terms of employment. The employment agreement is the last step of an employer’s long recruitment process, which plays largely into the employer’s willingness to negotiate at this point. On the surface it seems the negotiating dynamic is skewed much in favor of the employer, who holds the desired position. However, the employer does not want to lose the person they want most and then have to repeat the arduous recruitment process if all it takes is revising the existing agreement to provide the executive with better terms. Executives who come to their employers with reasonable requests might be surprised by the employer’s willingness to negotiate. This is especially so when the employer has actively recruited the executive from her current employment at another company. This is the first moment where the executive and employer’s interests may clash; and the employer, having pursued the executive, will want to show that it is responsive to the executive’s needs and willing to give them serious thought.

How Does Negotiation Work?

The first step is to understand the terms that are being offered and the future implications of those terms. By reviewing the agreement with the help of employment counsel, the executive will get a full understanding of the agreement’s terms and the risks associated with signing off on those terms—especially restrictive covenants that might inhibit the executive’s growth in the profession should he or she leave the company for a position elsewhere. The goal is to isolate the terms that are important to the executive and that need to be refined with a plan for how the executive will negotiate those terms when he or she next meets with the employer or its representative. For example, an executive who wants to protect themselves from subjective termination would prioritize negotiating a pro-employee “cause” termination clause and a severance package that stipulates the executive will receive earned, unvested compensation if terminated. For an executive whose compensation is primarily based on bonus, equity pay or stock options, the priority will lie with negotiating better vesting options and non-dilution terms.

Once counsel and the executive have worked through the priority of the terms that need to be revised, it is often advisable to have the executive provide an annotated agreement with the revisions built-in to the employer for consideration. The executive must assert their position boldly while being careful not to alienate the future employer with coaching from counsel on presentation of issues. If the executive and the employer fail to compromise, the executive should then consider having his or her attorney engage in direct negotiations with the employer’s General Counsel on behalf of the executive.


So What Exactly Will I Be Negotiating?

Depending on the industry and the executive’s priorities, an employer may seek revisions on any of the following terms of employment.

  • Remunerative terms, such as:
  • • Salary
  • • Bonus
  • • Commission
  • • Stock options
  • • Medical benefits
  • • Retirement benefits
  • • Deferred compensation
  • • Vacation and leave

  • Restrictive covenants, such as:
  • • Non-compete
  • • Non-solicitation
  • • Confidentiality
  • • Preserving trade secrets
  • • Dispute resolution

  • Terms of severance, such as:
  • • Grounds for termination, i.e., for cause, not for cause, mutual agreement, notice requirement, opportunity to cure
  • • Severance pay
  • • Continued medical coverage
  • • Buy-back of equity
  • • Bonus payouts and vesting periods
  • • Dispute resolution (arbitration vs. litigation).

Conclusion

The bottom line is that an executive with an offer of employment and an unsigned employment agreement should always consider negotiating for better terms. If you do not ask, you will never get – but you have to do it with tact and strategy. This article is not intended to be nor should it be construed as providing legal advice. As with any matter, the particular details of each executive’s situation require careful consideration and should be reviewed individually with an attorney.


Yogi Patel, Esq. is an employment and business lawyer and partner at Lloyd Patel LLP, a general practice law firm. He can be reached directly at yp@lloydpatel.com.

Whitney McCann is a second year law student at City University of New York School of Law, interning at Lloyd Patel LLP, and expects to graduate in May 2017.


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