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I have been offered a job, but there are a few items in the…

Hello, I have been...

Hello, I have been offered a job, but there are a few items in the contract that concern me. I am wondering what I should do, or if I need to be concerned. The main things that worry me are that there is a non-compete agreement that might make it hard for me to find future work, and this is for a job that is paying way below market value, and is meant to be a stepping stone for me. The other piece is that they have a contingency in which should they choose to sue me, I must pay their legal fees. There are some smaller items that also seem a bit odd to me, but the first two things are the biggest. I am thinking I should try to negotiate this contract, but I'm also worried it could cause big delays, and they may withdraw the offer if I do. Maybe the contract wouldn't hold up in court anyway.

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

Some details: the company is headquartered in CT, and my work is 'remote' from anywhere in the world, and currently I am a US citizen living abroad.

Lawyer's Assistant: What steps have you taken so far?

So far...

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Oops, I got dropped form what I said So far I have not responded to their contract Which came in last night The only other thing to know is these guys seem like they really might pull the offer if I try to negotiate. Long story as to why I think that. But I am also quite concerned. That's all.

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Customer reply replied 3 months ago
I've attached the actual contract. One other note is that I tried to negotiate on the salary and vacation package, and they were absolutely inflexible. Because finding FT work in my field from abroad is so difficult (I have been looking for 3 years), I really do want this job to work out. But because the pay and benefits are poor, I do hope to leave in a year or so, and I would need to stay in my field. This job may prevent this from being possible.
Answered in 1 hour by:
4/21/2018
Attorney Wendy
Category: Legal
Satisfied Customers: 1,403
Experience: Member at Keefer & Keefer LLC
Verified

Hello. My name is ***** ***** I am an attorney. I am reviewing your question and the related contract now and should be back with you shortly.

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Customer reply replied 3 months ago
Thanks so much Wendy!
Customer reply replied 3 months ago
Hi Wendy, before we do a paid call, I want to check and see what's likely to be involved, and to know what fees to anticipate, and the difference between chat versus phone consultation in terms of fees. If I would likely need help with making change suggestions to the contract, I imagine there might be additional fees? Thanks for your preliminary guidance.

Sorry about the phone call issue - that is something JustAnswer automatically offers, but we can easily discuss this issue/contract via email.

I applaud that you are thoroughly considering this contract before signing. All too often people simply sign and then have trouble later. I have reviewed the agreement and have the following thoughts and observations:

1. The contract is both for two (2) years but then later claims the employment is at will. That doesn't necessarily raise any concerns since clearly the intent is that you could quit at any time. But, it is legally contradictory to have contract for a set time and then say it is at will.

2. In terms of the non-compete agreement, you may want to ask if the "Restricted Period" could be reduced to 1 year. To be enforceable, a non-compete agreement (which is generally disfavored under the law because it restricts competition in the marketplace, which is actually good for consumers) must be reasonable as to time period and geographic restrictions. For the time, if you or the company were to terminate this relationship after just one year, a 2 year restriction would be restricting you from competing with the company for a longer time than you even worked for them. Generally, a court will not uphold a time restriction that is longer than the person was employed in the first place. As to the geographic limitation, it is quite broad, but since your work will be provided to a geographically broad client base, that may be appropriate. The legal fees responsibility should the company have to incur them to enforce the non-compete is standard and likely wouldn't be removed.

3. I did want to point out that, in my opinion, the arbitration provision is a good thing. Arbitration generally costs less and goes more quickly than court cases. And, I noted that in the provision in this contract, each party is responsible for his/her own attorneys' fees, which is unusual. More often, I see the winner's fees get paid by the loser and that would, again in my opinion, be a bigger risk for you. I think each paying their own is better. So, that provision looks good.

If you need further assistance, feel free to reply to this email. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

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Customer reply replied 3 months ago
This is so helpful, thank you! I have one more question about the legal fees, which I may be able to answer for myself, so I'll look again at the contract. I may have misunderstood that part, because I thought it was that if they sued me for any reason I would have to pay their legal fees, and that worried me a bit. I don't want to waste your time though, so I'll look at that and get back to you to tell you if I still have a question about that.
Customer reply replied 3 months ago
Ok, so it looks like they can only sue me if I breach a provision of the contract, which I would hope not to do. If this is standard language, then maybe I need not worry too much.I do remain concerned that the non-compete would be hard for me. I would be unable to ever quit if I couldn't work for even a whole year anywhere in the entire world. I wonder if there's a way I can work around that a bit. Their clients are are in China and South Korea (my job would be to help students in these locations to prepare for US university admissions), so since I'm focusing my career on college counseling, the rest of the world does seem too restrictive. I am not sure if I ought to ask them to geographically limit this piece, or just refrain from worrying about it since maybe in practice it wouldn't be so enforceable anyway. I hope I'm making sense.
Customer reply replied 3 months ago
The one last thing that worries me a tad is that it says, "... inGenius will not be required to demonstrate irreparable harm or actual damage" if they sue me. Is that also normal language? I'm not sure if I'm over analyzing or worrying too much, but I just want to make sure I'm being safe. Thanks!

Sorry for the delay; I stepped away from my computer for a bit. You are definitely highlighting the things about non-competes that make courts not like them. The not needing to show irreparable or other damage is pretty standard but it is certainly pro-the company. Unfortunately, if that language is not in there the non-compete and confidential information provisions don't have much meaning - which would be great for you, but also means it is not likely something they would agree to change (though you can certainly ask). The irreparable harm language is needed for them to get an injunction (an order that would stop you from continuing any competition).

In terms of the fees, (Paragraph/Section 12) you may want to ask that they add to that last sentence about reimbursement of fees that you only be responsible for such reimbursement if inGenius is successful in the legal action. In other words, they don't get to collect fees from you if they sue you and lose. That would be a good thing to ask for in terms of a contractual change and I see no reason (though there is no guarantee) why they would balk at that change.

For the geographic scope - the language quoted here doesn't clearly set out exactly what the geographic limitation would be and I kind of like the use of the term "or" rather than "and" (bolded below) as it could be argued that means the geographic limitation is either but not both of those described areas and I could see a court (if it came to that) choosing whichever of them is the smallest.

"that the scope of the restrictions referenced in this provision be as broad as the area in which the division or unit of inGenius for which Chloe worked or about which Chloe has Protected Information does business. Accordingly, the restrictions referenced in this provision will be applicable to the entire United States, South Korea, China, and to those additional cities, regions and countries where the division or unit of inGenius for which Chloe worked or about which Chloe has Protected

Information is located, operates or provides offerings."

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Customer reply replied 3 months ago
Ok, that's super useful. I'll add a sentence about the fees, as you mentioned. I like that. I won't bother asking for changes they are unlikely to make. My remaining questions I think are quick ones. I put them in between asterisks (a *) in attempt to make them easy to read.Regarding geographic restriction, I agree that maybe the "or" language could help, but I do worry a some about the line that follows, which says, "Accordingly, the restrictions referenced in this provision will be applicable to the entire United States, South Korea, China, and to those additional cities, regions and countries where the division or unit of inGenius for which Chloe worked or about which Chloe has Protected." The 'entire United States' would be a tough one for me because I am a US citizen, and do plan to move back to work there eventually.* Do you think most companies would balk at a request to narrow the geographical restrictions? Or maybe it's not worth asking for... *Oh there is one other small thing. * For the vacation, does this seem normal?:*They say, "In the event of termination of the employment relationship, Chloe will not be entitled to compensation for any unearned or unused vacation days." I thought that was illegal, but then again, maybe companies are not really required to give vacation.I previously worked in California, which has pretty strong employee rights, and so many of my assumptions about what's "normal" are probably based on that.Ok, I think those are all of my questions. Thanks a bunch! I'll definitely give you a 5 star review, Wendy.

I think asking for at least clarification on the geographic limitation might be useful.

The vacation provision is not drafted to be super clear but seems pretty typical.

In most states/places you only get paid for unused or unearned vacation days if the employer decides to institute a policy that provides for such payment. In other words, even if you accrued and have vacation or sick days left when you leave, unless the employer has a policy that provides you will be paid for that time, you will simply lose it. You are correct that California does provide a lot of protections for employees that are not found in most states.

Attorney Wendy
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Experience: Member at Keefer & Keefer LLC
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Customer reply replied 3 months ago
Okay, thanks so much for all of your help. Hope you'll get to enjoy the rest of your weekend!
Customer reply replied 3 months ago
Oh my goodness, today I got an email saying they rescinded the offer. I am in utter shock. Last week I talked to them, the conversation went well, I thought, they asked that I put my requests in writing, and then confirmed whether I'm free for training in CT June 4-8. Then today I found this in my inbox:"It seems I received two voice messages from you last week but I wasn't able to check until the weekend due to some technical issues on my end. After much consideration, I think it's best that we part ways. We are retracting our offer at this time."I thought our understanding was that I'd sign the contract, but that I just would feel more comfortable with some small changes. I even turned down contract work and a job interview because I thought I had a job, and told my references I was accepting an offer. I'm really shocked.Is this even legal?
Customer reply replied 3 months ago
Also, not that it matters, but I left one voicemail last week just saying politely it would be nice if we could talk, and one a while back when I couldn't reach them by email to confirm plans. I am wondering if she felt pressured by the two messages that her broken voicemail system delivered her late, but they were both very friendly. I'm guessing this is irrelevant, but I really don't understand what happened. I am thinking maybe I should send a polite message saying I'm disappointed, and asking if they could please tell me the reasoning.

That seems incredibly unprofessional to me, but it may also be a sign that you would not want to work for them. Of course, I can't know that, but any employer who won't at least consider your questions or concerns - even if they don't agree to/with them - would likely be incredibly unpredictable and hard to work for. That said, I know you had been having trouble finding suitable employment abroad; so I am so, so sorry this happened. It may be worth communicating with them one more time just asking why the offer was rescinded and that it may be a misunderstanding - but that will depend on whether you do want to work for them. They can likely retract the offer until you actually signed/accepted, but you may be able to say that your understanding was that you accepted the position but were just trying to work out details.

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Customer reply replied 3 months ago
Good ideas, all of these, thank you, ***** ***** so much for the quick and supportive response!
Customer reply replied 3 months ago
Good ideas, all of these, thank you, ***** ***** so much for the quick and supportive response! You're right that this does not seem like a desirable company to work for. You also tuned right into the factor that being abroad has made me more flexible than usual, yet of course I must still have limits. At this point, I'm going to take some time to think this through before reacting.
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