Hope you are doing well. I am on H1B visa working for a consulting company A. I have changed my job to a new employer B ( employer in New Jersey and I am working for a client in CA ) . My employer B is asking me to sign an agreement ( Though nothing was mentioned before joining either verbally or in the offer letter). So, this is a surprise for me.
I was reading the agreement and found something fishy. Employer is asking to sign an agreement enforcing me to stay for 18 months with the employer. However, no specific damage amounts were mentioned if I want to leave before 18 months.
All, my employer spent on me is H1B visa transfer fees. employer also mentioned that the employer will process my Green card
So, my question is
1. Is this kind of agreement legal ?
2. If this agreement is legal, what will be the approximate liquidated damages would I incur for leaving before 18 months.
Here are the points in the agreement that states this 18 month condition.
Employment pursuant to this agreement shall commence on the date first set forth in this agreement and shall continue for a
minimum period of Eighteen (18) months (the “Minimum Term”), subject to extension pursuant to this agreement unless and
until sooner terminated under Section 4 titled "termination" enumerated below.
The Employee may be terminated for "good" or "just cause". The term of Employee's employment pursuant to this agreement
shall commence on the date set in this agreement and may extend under the terms of this agreement thereafter unless and
until sooner terminated for "good" or "just cause," as follows:
4.1 by XXX, immediately upon notice to Employee, if at any time or times Employee breaches any terms of this
agreement, or if any representation Employee makes herein or in any statement Employee makes in writing or orally in
connection with Employee's hiring by XXX proves false or misleading; or
4.2 by XXX, if any reason Employee does not perform the services required hereunder; or
4.3 by XXX, for breach of any confidences as detailed in Article 7; or
4.4 by XXX, for any material breach of this agreement; or
4.5 by XXX, in the case of death or disability of the Employee, or in any other instance where the Employee is unable to
perform or continue to render his/her services. Further, in case of death of Employee, XXX will pay the estate of the
Employee all compensation earned but unpaid at the date of his/her death.
4.6 by XXX, if the Employee willfully breaches, neglects or proves ineffective in performing duties that he/she is required to
perform under the terms of this agreement.
4.7 by XXX in case of loss of the Employee's mental competency; or
4.8 by Employee or XXX, under the following circumstances following:
a) by XXX, by giving Employee 24 hours oral or written notice.
b) by Employee, by giving XXX two (2) Weeks written notice after the expiration of the Minimum Term.
c) by Employee by paying liquidated damages as determined by the company which shall constitute an approximate
amount of monies lost due to profit, replacement, costs, etc., such amounts being very difficult to calculate due to the changes
in duties the Employee, lost business opportunities, obtaining the services of a replacement or unpredictable conditions within
the industry. Liquidated damages are applicable only if employee fails to give sufficient notice of termination to XXX or
terminates this Agreement prior to the expiration of the Minimum Term.
Both parties agree that actual determination of damages are difficult because placement of the Employee at different work
sites with different training requirements and job responsibilities and lead time to make calculations of profits with different
training requirements and job responsibilities and lead time to make calculations of profits and loss opportunities with other
For purposes of this Agreement, "good cause" or "just cause" shall mean, in addition to the use and meaning given by the
Courts and not limited to, (a) dishonesty or fraud by the Employee whether or not it is related to XXX, its affiliates or clients or
their business; (b) conviction of the Employee of a felony or misdemeanor (c) a material breach or default by the Employee of
any of the provisions of this Agreement, or (d) the refusal or continued neglect or failure of the Employee to carry out his/her
duties or responsibilities hereunder. Such "good cause" or "just cause" must be clearly and fully stated by notice provided to
the Employee by the Employer at or prior to such termination.
XXX expressly reserves its full right to discharge Employee for good cause, and, exercise its option, to terminate this
agreement. XXX shall also have right to terminate Employee's employment hereunder at any time for violation of the terms of
this agreement by Employee or otherwise.