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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15579
Experience:  Employment/Labor Law Litigation
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I have a employment contract initiated Feb 1 2012 that set

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I have a employment contract initiated Feb 1 2012 that set terms and values for compensation. The contact states that "this agreement shall remain in force three years at which time will be evauated and adjusted depending on existing market needs" The company has hired a new director of sales that wants to change the compensation structure across the board. Am I protected by this contact from these changes
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.

 

Does the contract state that you can only be terminated for cause?

 

Does the contract have any sort of termination provisions at all?

 

Does the contract state that the terms can't be altered without your consent?

Customer: replied 1 year ago.
Question one-NO
Question 2-NO
Question 3 NO

I can email you the contract.
Expert:  Allen M., Esq. replied 1 year ago.

You'd have to post it in this forum. I can't give you my email, by the rules of this cite.

 

I'd like to see it, because your answers are very confusing. I'm not sure this is a contract of employment at all, as it seems to be missing many important provisions of a contract of employment.

Customer: replied 1 year ago.
Can you give me a call?
Expert:  Allen M., Esq. replied 1 year ago.

No. The rules of this site do not allow us to communicate outside of this forum. That is why I can't give you my email address in order to send me the contract.

 

If the contract is supposed to last three years, I just have a really difficult time believing that there is not any provision at all for the company to be able to terminate it.

 

A true contract would at least allow them to terminate you for cause. The document that you are describing right now suggests that you could essentially do anything that you wanted in the workplace, but as long as you did your work, they couldn't fire you and that simply can't be true.

 

How long is this document? How many paragraphs does it have? Did both parties have to sign it?

Customer: replied 1 year ago.
Prior to this contract I had submitted my resignation. This contact was initiated by the CEO to keep me from leaving the company.
Expert:  Allen M., Esq. replied 1 year ago.

Ok.

 

If the contract really does not contain any provision whatsoever for them to terminate you, then yes you can use the contract to maintain the terms of your employment through the 3 year period involved.

 

I'm certainly not suggesting that you are lying about the contents...I'm just shocked that such a contract would be written. It goes against my lawyerly sensibilities which always require a safety valve.

 

It is a term of years contract, and without an early termination provision, they would have to establish some serious cause amounting to a breach on your part in order to get out of its provisions.

 

 

Customer: replied 1 year ago.
Where you able to read the text I sent?
Expert:  Allen M., Esq. replied 1 year ago.

No, I saw no text of any kind. I only saw your last statement:

 

"Prior to this contract I had submitted my resignation. This contact was initiated by the CEO to keep me from leaving the company. "

Customer: replied 1 year ago.
January 31,2012
FMAG LLC
38800 Grand River Ave.
Farmington Hills, Ml48335
Mr. Ken Pope
Re: Employment Contract




EMAG L.L.C.
38800 Grand River Avenue
Farmington Hills, MI 48335
Tel. (XXX) XXX-XXXX
Fax. (XXX) XXX-XXXX


Re: Employment Contract


Dear XXXXX:
Thank you for the call this morning and the opportunity to understand your concerns regarding your future with
FMAG
As we discussed your base pay would be increase to $80,000.00 per year beginning February 1,2012 and will contain a 3 annual increase in the base for the duration of this contract
Commission structure would remain the same. In addition Emag will pay a guaranteed $25,000 per year, draw against
commission. Once commissionable sales exceeds the $25,000.00 draw, Emag will pay commission at the standard
rate, all other existing benefits, car allowance, expense reimbursements shall remain the same.
This agreement shall remain in force three years at which time will be evaluated and adjusted depending on existing
market needs.
I hope this meets your approval and I look forward to future growth and success with you and EMAG LLC.

Kennedy D. Pope, CMTSE January 31, 2012
Southeast Regional Sales Manager


Acknowledged _
Peter Loetzner
CEOEMAGLLC
Expert:  Allen M., Esq. replied 1 year ago.

So, this appears to be an email or letter from someone.

 

Neither of you signed this, did you? There was no formal, written contract upon which both parties placed their signatures?

Customer: replied 1 year ago.
Yes there are two signatures, you just cannot see them in the format I sent them. I signed and the CEO signed and acknowledged.
Expert:  Allen M., Esq. replied 1 year ago.

Ok.

 

That's not an employment contract. Not a true one. It is an attempt by a non-lawyer to draft something up, but it meets none of the normal requirements for an employment contract, which specifically requires something to be said about termination. It has to state that termination of the agreement can only happen for cause or it is essentially nothing more than a statement of terms for "at will" employment.

 

I'm getting unnecessarily bogged down on this point perhaps, but a court is not going to enforce that contract as a true term of years employment contract because entirely too much is missing from it to be truly enforceable in that way.

 

I'm not saying that you have no arguments to make here, but that is not an "employment contract" as we term them.

 

Your arguments would be equitable in nature, not contractual. You would be able to argue, based on these agreement, that you reasonably relied on their promise to your detriment, in that you chose to stay rather than leaving for other work, based on the promises of the company. You, therefore, lost opportunities you would otherwise have taken. That is also your argument if they terminate the agreement, which they can certainly try to do, claiming that it is merely an "at will" agreement.

 

 

Customer: replied 1 year ago.
They are not trying to terminate me. THey want to restructure the base pay and commission structure. I'm having a hard time beliveing this is not a contract when it clearly states Employment contract. Does it have to be complicated to be enforceable?
Expert:  Allen M., Esq. replied 1 year ago.

The issue of termination is important, because it discloses what kind of contract you actually have. I know they aren't trying to terminate you, but if you have a contract which doesn't stop them from terminating you, then they can literally terminate your employment and then immediately offer you new employment at the rates they want.

 

Just because is says the words "Employment contract" on it does not mean that it meets the legal requirements of a contract. I can understand you having a hard time believing this, but I make a living interpreting and drafting these things. It's all I do. I'd love to be able to tell you that you have an ironclad employment contract here. I would if I could. It'd make you happy and you'd be more likely to pay me. And yet, I'm not simply telling you that. The reason is that I'm being honest with you here.

 

Yes, a true employment contract has to be of a certain degree of complexity. That is why attorneys draft these things. What matters is the contents of the contract, not what someone decides to label it. Plenty of employers label things "independent contractor agreement" but the contents of the document make it legally an employment contract.

 

Now, I'm not saying that you do not have a legal argument here. I'm not saying that you can't use this agreement that was drafted up for something. Yes, a court would be willing to consider it an attempt at a contract, but it will have to use its equitable powers to do so. I'm not going to try and teach you the entirety of contract law right now, but there are two sides to it....basic contract law and equity.

 

I'm saying that under basic contract law, that is not an employment contract because it does not limit the employer's ability to terminate the agreement or you.

 

Your arguments will have to be under equity and that swings on you having relied, to your detriment, on their promises. The laws of equity are concerned with making that which should have happened, happen. This is where you'll have to make your arguments to enforce the agreement that you have.

 

Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15579
Experience: Employment/Labor Law Litigation
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