What Terms Should Be Included in an Employment Contract?
Most employers require administrative, professional, and executive employees to sign an employment agreement or contract. While employment contracts are not required except in specific cases they can protect both the employer and employee.
This article reviews the terms and conditions of a typical employment contract.
Key Takeaways
l An employment contract sets out the duties of the employee and employer and provides the employer with the opportunity to clarify the relationship.
l Employment contracts are used primarily for executives, managers, professionals, and other key employees.
l Most contracts include agreements that restrict employees from competing with the employer, soliciting customers, and disclosing trade secrets.
l Employment contracts should includes processes for terminating the contract and handling disputes.
When Do You Need an Employment Contract?
You should have an employment contract for executives, managers, professionals, and for other key employees who have control over sensitive, private information of your company.
Hourly employees typically do not have written contracts, but terms of employment might be spelled out in an employee handbook or other company policies and procedures.
Employment contracts are subject to state employment laws and are usually tried in state courts.
Specific Contract Terms To Include
Although the specific terms or articles required in an employment contract vary by state and by type of employment, the following terms and conditions are usually included in these types of agreements.
l Identification: The parties must be identified completely, including full name, address, and other information.
l Effective date: The effective date is the date both parties have signed.
l Pay and benefits: Give details of pay rate, pay dates, and benefits provided by the company.
l Full-time employment: The employee must agree to devote their best efforts to the company's business, not doing work for anyone else during work hours without prior approval.
l Duties: Include a description of the employee's duties and describe requirements to maintain professional licensing and results of not performing duties.
l Extent of services: Describe the hours and days when the employee must be at work.
l Work for hire: Include a statement that the employee's work products are the property of your business.
l Benefits: Benefits provided to the employee may be specific, or they may be referred to an employee handbook or benefits listing for all employees.
l Termination: Describe the circumstances under which either party may terminate the relationship and the notice required from each party.
l Disputes: The process for settling disputes must be described, including the option for arbitration.
l Applicable law: The applicable law section is a statement about the state in which the contract is effective. This is the state that has jurisdiction for the particular case.
Restrictive Covenants in Employment Contracts
A restrictive covenant is a clause in a contract that that restricts one of the parties from doing something during the term of the contract or afterward. These clauses are usually placed in an employment contract by an employer intending to protect them from actions of an employee.
Restrictive covenants may be elements in an employment agreement, or they may be separate agreements. These covenants are not found in all employment contracts but depend on the type of employment and level of employment. For example, executives, corporate officers, salespeople, or employees working on sensitive technology information may be asked to sign a restrictive covenant.
Non-Compete Agreement
A non-compete agreement restricts an employee from competing with the employer during the term of the employment contract and a time after the employee leaves the company. This agreement includes a specific area and time period within which the employee can't set up a competing business.
Non-compete agreements must be worded carefully to make sure they can be upheld by a court. Having too broad an area or too long a time can result in a court disallowing the agreement because it violates state restraint of trade laws.
Non-Solicitation Agreement
A non-solicitation agreement (NSA) is an attempt to stop employees from hiring other employees away from the company or taking customers away. This type of agreement is often used by businesses for salespeople or customer service employees and in businesses with repeat customers.
Confidentiality Agreement
A confidentiality agreement, sometimes called a non-disclosure agreement (NDA), is an agreement in which the employee agrees to keep trade secrets, financial information, potential new products, and other private company information confidential. The NDA should include a comprehensive list of all possible company information to be included in the agreement.
If you want to prepare an employment contract for an employee, you should get an attorney to help you, or at least to review the contract. State laws are always changing, and each business situation is unique.
Frequently Asked Questions (FAQs)
How can you get out of an employment contract?
The process of getting released from an employment contract is determined by the wording in your agreement. Some agreements include a specific expiration date that can be extended if both parties agree. Otherwise, the contract should include a clause that describes how either party may terminate the contract and what type of notice is required.
Some contracts state that they are "at-will," meaning that the agreement is for an indefinite period of time and may be terminated at any time by either the employer or employee.
State laws may modify this rule with restrictions. For example, California law includes exceptions to the at-will rule for contracts that require "good cause" termination, and Montana has completely eliminated the at-will rule.
What happens if a business or employee breaches an employment contract?
"Breaching a contract" means that one party does something that breaks their terms of the contract. For example, if the terms of the agreement state that the employer must pay severance pay for an employee who is terminated for reasons other than for cause, and severance isn't paid, that's a breach.
If an employee feels that their employer had beached the contract, and this breach has resulted in harm to the employee (loss of pay, for example), the employee must take their case to court. That means getting an attorney and filing a lawsuit to recover damages.
An employer has another remedy to stop an employee who is causing harm by breaching the contract. This happens most often when an employee breaches a non-compete agreement or non-solicitation agreement. In these cases, the employer can ask a court for an injunction requiring the employee to stop the action that is harming the employer. However, this may be a temporary injunction while the case goes through the process.
雇佣合同中应包含哪些条款？
大多数雇主要求行政、专业和行政雇员签署雇佣协议或合同。虽然除非在特定情况下，不需要雇佣合同，但它们可以保护雇主和雇员。
本文回顾了典型雇佣合同的条款和条件。
关键要点
l 雇佣合同规定了雇员和雇主的职责，并为雇主提供了澄清关系的机会。
l 雇佣合同主要用于高管、经理、专业人员和其他关键员工。
l 大多数合同都包含限制员工与雇主竞争、招揽客户和泄露商业机密的协议。
l 雇佣合同应包括终止合同和处理争议的程序。
什么时候需要雇佣合同？
您应该为管理人员、经理、专业人员和其他可以控制公司敏感、私人信息的关键员工签订雇佣合同。
小时工通常没有书面合同，但雇佣条款可能会在员工手册或其他公司政策和程序中详细说明。
雇佣合同受州雇佣法的约束，通常在州法院审理。
要包括的具体合同条款
尽管雇佣合同中要求的具体条款或条款因州和雇佣类型而异，但以下条款和条件通常包含在这些类型的协议中。
身份识别：必须完整识别当事人的身份，包括全名、地址和其他信息。
生效日期：生效日期为双方签署的日期。
工资和福利：提供公司提供的工资率、支付日期和福利的详细信息。
全职工作：员工必须同意为公司业务尽最大努力，未经事先批准，不得在工作时间内为他人工作。
职责：包括对员工职责的描述，并描述维持专业许可的要求和不履行职责的结果。
服务范围：描述员工必须工作的时间和日期。
受雇工作：包括声明员工的工作产品是您的企业的财产。
福利：提供给员工的福利可能是具体的，或者可以参考员工手册或所有员工的福利清单。
终止：描述任何一方可以终止关系的情况以及各方要求的通知。
争议：必须描述解决争议的过程，包括仲裁选项。
适用法律：适用法律部分是关于合同生效所在州的声明。这是对特定案件有管辖权的国家。
雇佣合同中的限制性条款
限制性契约是合同中的一个条款，限制其中一方在合同期限内或之后做某事。这些条款通常由雇主放置在雇佣合同中，以保护他们免受雇员的行为。
限制性契约可能是雇佣协议中的要素，也可能是单独的协议。这些条款并非在所有雇佣合同中都有，而是取决于雇佣类型和雇佣水平。例如，可能会要求管理人员、公司官员、销售人员或从事敏感技术信息工作的员工签署限制性契约。
竞业禁止协议
竞业禁止协议限制员工在雇佣合同期间和员工离开公司后与雇主竞争。该协议包括一个特定的区域和时间期限，在此期间员工不能建立一个与之竞争的业务。
竞业禁止协议的措辞必须谨慎，以确保法院能够支持。范围太广或时间太长可能会导致法院驳回该协议，因为它违反了国家对贸易法的限制。
非招揽协议
非招揽协议 (NSA) 试图阻止员工从公司雇用其他员工或带走客户。这种类型的协议通常被企业用于销售人员或客户服务员工以及有回头客的企业。
保密协议
保密协议，有时称为保密协议 (NDA)，是员工同意对商业秘密、财务信息、潜在新产品和其他私人公司信息保密的协议。 NDA 应包括一份包含在协议中的所有可能的公司信息的完整列表。
如果您想为员工准备雇佣合同，您应该让律师帮助您，或者至少审查合同。州法律总是在变化，每个商业情况都是独一无二的。
常见问题 (FAQ)
你怎么能摆脱雇佣合同？
解除雇佣合同的过程由您的协议中的措辞决定。一些协议包括一个特定的到期日期，如果双方同意，可以延长该日期。否则，合同应包含一个条款，描述任何一方如何终止合同以及需要什么样的通知。
一些合同声明它们是“随意的”，这意味着该协议是无限期的，并且可以由雇主或雇员随时终止。 4
州法律可以有限制地修改此规则。例如，加利福尼亚州法律对要求“正当理由”终止合同的随意规则规定了例外情况，而蒙大拿州已经完全取消了随意规则。 56
如果企业或员工违反雇佣合同会怎样？
“违反合同”是指一方做了违反合同条款的事情。例如，如果协议条款规定雇主必须为因非正当理由而被解雇的雇员支付遣散费，并且没有支付遣散费，那就是违约。
如果员工认为他们的雇主违反了合同，并且这种违约行为对员工造成了伤害（例如工资损失），则员工必须将他们的案件告上法庭。这意味着请律师并提起诉讼以追回损失。
雇主有另一种补救措施来阻止因违反合同而造成伤害的雇员。这种情况最常发生在员工违反竞业禁止协议或非招揽协议时。在这些情况下，雇主可以要求法院发出禁令，要求雇员停止损害雇主的行为。但是，这可能是案件进行过程中的临时禁令。
Citation: What Terms Should Be Included in an Employment Contract?
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