EMPLOYMENT LAW FOR INDIVIDUALS
Smyth & Mason has a long history of representation of individuals in the area of Employment Law. The following are representative examples of what we do.
EXECUTIVE AND EMPLOYEE CONTRACTS
We help key employees and executives to negotiate and document the key terms of their employment before they begin. Your best negotiation leverage is at the beginning of a relationship, before you have accepted a job offer. The more important your role and the more the new employer wants to hire you, the more leverage you have.
Employment contracts can provide for a number of key protections. These include signing bonuses; indemnification by the employer; termination only for cause, severance if your job duties are reduced or you are terminated; clear triggers for automatic increased compensation; unique or enhanced benefits; shorter vesting periods for equity and stock options; limits on non-competition and confidential information obligations; and a variety of other important advantages. But if you don’t ask for those protections, you will not get them.
Too often, people with leverage do not take adequate advantage of their leverage at the beginning of employment. Don’t let opportunities pass you by.
SEVERANCE AGREEMENTS AND NEGOTIATIONS
Most employees will be terminated at some point in their career. We help individuals seek and evaluate severance offers. The amount of severance offered can often be increased through negotiation. Additional severance benefits, like payment of COBRA premiums for continuing health insurance, can be negotiated. In addition, severance agreements can establish how and by whom inquiries and references regarding the former employee will be handled and ensure against disparagement.
Severance is typically provided in return for the employee signing a release of the employer. You need to be sure the severance offered is worth more to you at that moment than the claims you are releasing. We can help you evaluate that. Proposed releases may also not contain exceptions for things like employer indemnification or as yet unpaid compensation you expect to receive. We can draft such exceptions. Severance agreements often don’t contain attorney fee and cost recovery provisions. If the employer is assuming continued duties to you under the severance agreement over time, these are essential. We know when and how to ask for them.
Severance agreements also often contain new employee obligations that are not adequately understood and can be removed through negotiation. Many employers asked for increased non-competition obligations in return for severance, which is not necessarily in a terminated employee’s best interest. You need to know what you are signing and how to ask for changes. Again, we can help.
NONCOMPETE AND PROPRIETARY INFORMATION AGREEMENTS, TRADE SECRETS AND PREPARATION TO COMPETE
Most employees sign non-competition, non-solicitation and proprietary information agreements. Before beginning competition or a new job in the same industry, it is critically important to have such agreements reviewed by counsel to make sure you understand what you signed and what the chances are that the restrictive commitments will be enforced against you.
Often, these types of agreements limit a person’s ability to work in desired areas for a considerable length of time, much to the surprise of the person who signed it years ago. Not every non-competition agreement is enforceable as drafted, however. Some are unenforceable or only partially enforceable because of lack of consideration, because they are too broad, or for other reasons. We can help you understand whether the non-competition agreement you signed is subject to defenses. That can make a huge difference when you are looking for work. Depending on your leverage, we can also help you convince third parties who want to hire you to protect you through indemnification if you are later sued by your former employer for violating such agreements.
If you are sued, we can also help you evaluate your risk and defend you against injunction and damage claims. These cases are often resolved by negotiation, but you can’t go it alone. You need someone who can help you understand both your risk and strengths.
Individuals also need to keep in mind that they may be able to obtain carve outs or limits to non-competition and proprietary information agreements from an employer at the time they are first asked to sign those agreements. We consult in those circumstances as well. In addition, individuals can enhance their position by asking for an attorney fee and cost recovery provision to be added to the agreement. Such provisions can make challenging a non-comp much more cost effective, and attempted enforcement of an unenforceable or overbroad agreement by the employer much more risky.
Former employees also have obligations to protect and not use a former employer’s trade secrets. For example, client lists and other important sales information can be a trade secret, but not if the same information is available through public sources. We provide advice and litigation assistance to help you identify and treat trade secrets appropriately. We also help defend trade secret claims when individuals have been sued.
Preparing to compete is another area where individuals can benefit from advice. Many people do not understand that they can be sued for breach of the common law duty of loyalty to their current employer if they use employer resources to prepare to compete, prepare to compete while on the clock, or begin competing before they leave. We can help you avoid these pitfalls.
Not paying wages that are required by law is wage theft. We help individuals and classes of individuals recover unpaid wages that they are owed by employers, often on contingency. This can involve unpaid overtime, misclassifications of employees as exempt from overtime, unpaid severance, unpaid commission, improper rounding of work hours, failure to provide and pay for break time, failure to pay travel or on call time and other issues. Under state and federal law, you may be entitled to double damages on your unpaid wage amounts and may be able to proceed against individuals who participated in the non-payment of your wages. We have successfully prosecuted claims for wage theft both for individuals and classes of individuals.
DISCRIMINATION, HARRASMENT AND ILLEGAL RETALIATORY TERMINATIONS
We also represent individuals in claims for sexual harassment, discrimination, and retaliation claims where individuals are terminated in retaliation for reporting discrimination or other illegal behavior. If you believe you have been subjected to such behavior, we can help you evaluate the strength of your claim and help you pursue claims the law supports.