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Roger
Roger, Lawyer
Category: Employment Law
Satisfied Customers: 31590
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I need an contract question answered , I am on H1b : no : I

Customer Question

hi
JA: Hi. What is your issue regarding?
Customer: I need an contract question answered , I am on H1b
JA: The Employment Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: no
JA: Please give me a bit more information, so we can help you best.
Customer: I have a cluse that says that I need to give 90 day notice, and if not pay the balance of the amount
JA: Is there anything else important you think the Employment Lawyer should know?
Customer: I wanted to see if this can be enforced in the court
JA: Since laws vary from place to place, what state is this in?
Customer: MO
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Employment Lawyer about your situation and then connect you two.
Submitted: 11 months ago.
Category: Employment Law
Expert:  Roger replied 11 months ago.

Hi - my name is ***** ***** I'll be glad to assist.

Customer: replied 11 months ago.
hi
Customer: replied 11 months ago.
Dear ***** , I have an question on H1b contract
Expert:  Roger replied 11 months ago.

Can you tell me what the 90 day notice is for?

Also, can you tell me what money they agreement says you'll have to pay back if this notice isn't given?

Customer: replied 11 months ago.
the balance of the 90 day is what I need to pay, and the 90 day is for the notice not for any purpose..
Termination. Either party may terminate the EMPLOYEE's employment pursuant to this Agreement at any time by giving ninety (90) days written notice to the EMPLOYER, with or without cause or early by paying equivalent of salary in lieu of uncovered notice period. EMPLOYER is entitled to collect the amount for uncovered period through legal proceedings, if not paid amicably.
Customer: replied 11 months ago.
I just copy pasted the section form the contract for your reference..
Customer: replied 11 months ago.
Hello Roger, do you need any additional info on this matter?
Expert:  Roger replied 11 months ago.

Ok. Thanks.

Yes, if the employer and employee agreed to this provision, then the employer would have the right to seek the recovery of any funds according to this provision if the 90 day notice is not given. So, it's likely best to honor the 90 day notice to avoid having any issue with having money demanded back.

Customer: replied 11 months ago.
This is true even though I am on H1b Visa? I heard that the liquidated damages are the only kind that can be enforced on the contract, since this is punitive, will it be enforceable?
Expert:  Roger replied 11 months ago.

Your status wouldn't be relevant in regard to your employment agreement UNLESS you were specifically brought here by the employer to work.....and the employer knew you couldn't give 90 days notice because of your status.

Expert:  Roger replied 11 months ago.

Liquidated damages are legal and legally enforceable if conditioned on contracted terms that are breached.

Customer: replied 11 months ago.
this clause on the Contract constitute a Liquidated damage and punitive?
Expert:  Roger replied 11 months ago.

I don't know if a court would find the provision punitive or not......the damages are based on a party's failure to provide notice that was agreed to in the contract.....so it may not be considered punitive. But, that'd be up to a judge to decide.

Expert:  Roger replied 11 months ago.

A legal challenge certainly could be made as to this term and a court could determine whether or not it is unconscionable or unreasonable.....but since the contract term is pretty clear an unambiguous, it could be difficult to prevail.

Customer: replied 11 months ago.
Do you know will it be a amount that is deposited to my account or will it be a salary with out the tax deducted? I have 2 section in my offfer letter, a bench salary and an full time salary...which one will be enforced on my contract breach?
Expert:  Roger replied 11 months ago.

I can't say for sure....but it would likely be the amount before taxes are deducted. But, you'd need to discuss that issue with your employer.....and you would need to request documentation to support whichever position the employer takes.

Expert:  Roger replied 11 months ago.

Also, unless the contract specifies, both salaries would likely be affected, but that's a question for the employer, too.

Customer: replied 11 months ago.
Will my accumulated PTO hours serve as some respite to the 90 day clause... I have a total of 200 Hrs PTO, will it suface the portion of the 90 day period?
Expert:  Roger replied 11 months ago.

The employer should have a policy about that as well.....some companies have a payout provision to liquidate the PTO and some companies have a "use it or lose it" policy. So, you'd have to determine how your company deals with PTO upon termination/resignation.

Customer: replied 11 months ago.
Thanks for answering all the question, appreciate the help and clarity.
Expert:  Roger replied 11 months ago.

No problem and thanks for your question. Also, please take time to positively rate our conversation so I may receive credit for assisting you. Thanks again!

Expert:  Roger replied 11 months ago.

Please let me know if you have any additional questions. Also, please take time to positively rate our conversation so I may receive credit for assisting. Thanks again!