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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11880
Experience:  Significant experience in all areas of employment law.
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I have recently left a company, and one of the terms

Customer Question

I have recently left a company, and one of the terms for not having to pay pack a "clawback" clause in the hiring letter was to become an "independent contractor" for the company. A contract was signed by myself, the director of IT, and the HR director
stating that the Director of IT would provide me a project no later than June 30th, 2015, and I would have it completed by the end of the year. If not, I would be subjected to paying back the money "owed" in the clawback clause of my hiring letter. My question
is this - as of 6pm EST on June 30th, I have not received any contact from the Director of IT with a project that I am supposedly to work on. Could this be considered a breach of contract on the company's part, and if s, does it negate the contract and therefor
negate the clawback clause?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and welcome back.
If your employer agreed to provide you with work and then failed to do so, that failure could be construed as a breach of contract. The strength of such claim would increase if you could prove that you turned down other work to make yourself available for the work your former employer promised you.
But what I think you are really asking (and correct me if I'm wrong) is whether your employer can demand that you repay the clawback money because you didn't "become an independent contractor." In response to that question, I would say that you'd have a very strong argument that you are not liable to repay the clawback because you "became" a contractor by signing the contractor agreement. In other words, it is not the performance of work as a contractor which defines when you "become" a contractor but rather the signing of the contract in which you PROMISE to perform the work. You entered into a contract to perform work, and on that basis alone you "became" a contractor in satisfaction of the clawback exception.
I hope that this answers your question. If I have misunderstood anything or you need clarification, just let me know.
Best,
Patrick