Speaker 1: From executive search to talent strategy, leadership development, rewards, and
Speaker 1: succession planning. Corn Fairy can help you realize the full
Speaker 1: potential of your people so you can take your business
Speaker 1: where it wants to go up. Learn more at corn
Speaker 1: Ferry dot com slash up. So I've been thinking a
Speaker 1: lot about employment contracts lately. I know it sounds really
Speaker 1: boring and lame and weird, but it's been in the
Speaker 1: news a lot lately this year, from the Chump Campaign
Speaker 1: to Fox News. So this week on game Plan, we're
Speaker 1: going to be talking about all the stuff you sign
Speaker 1: when you sign on for a job. I'm Rebecca Greenfield,
Speaker 1: a reporter for Bloomberg where I cover workplace culture. And
Speaker 1: I'm Sam Grobart. I'm a writer at Blueberg Business Week magazine. Okay,
Speaker 1: so just last week, this employment contract stuff came up
Speaker 1: with Mark Burnett. Mark Burnett co creator of Donald Trump's
Speaker 1: famous reality show The Apprentice, and he's like pretty successful, Yeah,
Speaker 1: tons of other things, but in this case we're talking
Speaker 1: about The Apprentice. And so, as you know, this tape
Speaker 1: came out revealing that Donald Trump said some unsavory things
Speaker 1: on a bus, and so people are wondering if there's
Speaker 1: other footage of Donald Trump saying unsavory things from the
Speaker 1: many many years that he was the host of The Apprentice, right,
Speaker 1: And so there was this suspicion that Mark Burnett somehow
Speaker 1: was holding onto all of these tapes. And there was
Speaker 1: even the rumor that got out that he was threatening
Speaker 1: other employees from the production that if they leaked any
Speaker 1: of that information, they would be sued, right, and he
Speaker 1: could sue them because of their employment contracts, particularly the
Speaker 1: non disclosure agreement part of their employment contracts, which is
Speaker 1: something you sign when you either join or leave or
Speaker 1: both unemployer that says that you won't do certain things
Speaker 1: like league footage of Donald Trump exactly. And this is
Speaker 1: something we experience all the time. If it's not about
Speaker 1: an n d A, it's about signing up for the
Speaker 1: terms of agreement with you or internet provider or your
Speaker 1: mail service or what have you. There are just tons
Speaker 1: of legal ease that we sort of ignore and agreed to.
Speaker 1: And this is particularly true I think when you're in
Speaker 1: the excitement of joining a new company and getting hired.
Speaker 1: I'm pretty sure I did not read my employment contract
Speaker 1: and I came to no idea what is in my
Speaker 1: employment contract, which I know you're supposed to read everything
Speaker 1: you sign, but if it feels like I couldn't do
Speaker 1: anything about it, and I wanted the job and I
Speaker 1: wasn't going to say no, so whatever, I mean, I
Speaker 1: think you know we were talking about this earlier. It's
Speaker 1: like you checked maybe three things. It's you know, salary, Yeah, okay,
Speaker 1: that's what we agreed on vacation days, that's cool, and
Speaker 1: maybe title. Yeah. I looked back at an email with
Speaker 1: the recruiter here, and the things I asked about were
Speaker 1: can I have these vacation days? Right? But there's a
Speaker 1: ton of other stuff you sign and it's not just meaningless.
Speaker 1: It turns out I've learned this last year of paying
Speaker 1: attention to the news. Like in addition to the Mark
Speaker 1: Burnett thing, another scandal that brewed this year was Roger Ales,
Speaker 1: the of Fox News, was accused of sexually harassing many
Speaker 1: women and had to step down eventually left the company.
Speaker 1: And there was all this talk about nondisclosure agreements and
Speaker 1: non disparagement agreements and how that led to women being
Speaker 1: able to or not being able to talk about their
Speaker 1: harassment right, and in some cases it was a question
Speaker 1: of had they accepted money from their former employer, which
Speaker 1: may make it more difficult for them to speak out
Speaker 1: or not, in which case maybe they had that ability
Speaker 1: because they never received anything in exchange for it. I mean,
Speaker 1: you certainly don't go into a job thinking you might
Speaker 1: be sexually harassed. No, I shouldn't sign this enda. Well,
Speaker 1: that's the thing. I think these employment agreements that we
Speaker 1: sign for the time that we're working at the company,
Speaker 1: generally they don't have that much to do with our lives.
Speaker 1: It's when we decide if and when we decide to leave. Yeah,
Speaker 1: when ship gets real. Oh yeah, people stop being polite
Speaker 1: and start breaking their ends. So nondisclosure agreements are just
Speaker 1: one of many aspects of your employment contract that can
Speaker 1: come back to bite you or be something you wish
Speaker 1: you hadn't signed. And clearly Sam and I know nothing. Yeah,
Speaker 1: So we have here with us Brett Galloway. He's a
Speaker 1: partner at McLoughlin and Stern, where he specializes in labor
Speaker 1: and employment law, and we're going to just ask him
Speaker 1: some what we think are super basic and super interesting
Speaker 1: and important questions about our employment contracts. Thanks for coming on,
Speaker 1: Thanks for having me, guys, Hey, Brett, can we start
Speaker 1: by just asking you a very basic question defining what
Speaker 1: a standard employment agreement is. What what is that document
Speaker 1: that we get when we start a new job trying
Speaker 1: to do who is it protecting? What are some of
Speaker 1: the overall points of having that document? Sure, sim an
Speaker 1: employment agreement is a contract just like any other contract. However,
Speaker 1: it's a contract between people, obviously for services, and the
Speaker 1: consideration is you get money. There are various caveats in
Speaker 1: that contract, like non competes, non disclosures, binding, arbitration, confidentiality
Speaker 1: agreements uh that employees may not be aware of or
Speaker 1: may not be knowledgeable enough to ask questions on, and
Speaker 1: those all really benefit the employer. And most of the time,
Speaker 1: you know, unless you are a really specialized employee in
Speaker 1: a specialized area with some great superpower skill, employees are
Speaker 1: kind of bound by the terms of the agreement, i e.
Speaker 1: A boiler plate agreement. So the various terms that I
Speaker 1: just went over, non compete, nondisclosures, arbitration, those are things
Speaker 1: that employees should certainly be weary of, especially before signing
Speaker 1: any employment agreement, because they're going to dictate the terms
Speaker 1: of their employment. So yeah, actually, really want. That's exactly
Speaker 1: what I wanted to ask you next, is can you
Speaker 1: just define some of those terms, Like we've been talking
Speaker 1: about nondisclosures and nondisclosure noncompete, What do these things mean? Sure,
Speaker 1: a nondisclosure or confidentiality agreement are kind of one and
Speaker 1: the same, and those are typically more enforceable than the
Speaker 1: other restrictive covenants. A restrictive covenant is a restriction, i e.
Speaker 1: What we're gonna be talking about. The non disclosure agreements
Speaker 1: or the confidentiality agreements particularly deal with what's known as
Speaker 1: a trade secret. So if you have access to the
Speaker 1: Coca Cola recipe, you know, McDonald's secret sauce, something that's
Speaker 1: a trademarked piece of intellectual property that the company owns,
Speaker 1: you must sign or usually or will be required to
Speaker 1: sign a nondisclosure agreement stating that if you ever leave
Speaker 1: the employment, you won't disclose the special sauce. That makes sense,
Speaker 1: But that makes sense, But in the way we've seen
Speaker 1: it in the news, it seems like you're signing nondisclosure
Speaker 1: agreements to not say anything about your employment at all. Ever,
Speaker 1: is that legitimate? That's where the courts come in in
Speaker 1: terms of um looking at the employment agreement as a
Speaker 1: whole and seeing what aspects about it are reasonable and
Speaker 1: what are unreasonable, and courts can come in and just
Speaker 1: because an employment agreement covers the entire universe, that doesn't
Speaker 1: mean that you're actually going to be bound by the
Speaker 1: terms of that employment agreement. The courts will then come
Speaker 1: in to the extent it's too overbroad or burdensome or
Speaker 1: vague or otherwise and carve out what's reasonable and what's unreasonable.
Speaker 1: So this happens in the context in my experience, where
Speaker 1: an employee has signed on to an internet startup company,
Speaker 1: for example, and what that internet startup company does is
Speaker 1: maybe the next Uber or the next Venmo, and they're
Speaker 1: not allowed to discuss what it is that that company
Speaker 1: is doing. That's a reasonable nondisclosure agreement, and that would
Speaker 1: be a broader non disclosure agreement. Then you know you're
Speaker 1: not allowed to take the Coca cola recipe and go
Speaker 1: over to pepsi M. Let's talk a little bit. You've
Speaker 1: mentioned binding arbitration, so sometimes you wind up in a
Speaker 1: court of law, but sometimes you don't even get that far.
Speaker 1: Is that correct? If you're unlucky enough. Yeah, yeah, So
Speaker 1: tell me a little bit about what binding arbitration means.
Speaker 1: Arbitration is a form of what's known as a d
Speaker 1: R or alternative dispute resolution. And you have two forms
Speaker 1: of a d R. You have mediation and you have arbitration.
Speaker 1: Mediation is not binding. You go before a mediator. It's
Speaker 1: a neutral third party. Both sides come and present their case.
Speaker 1: At the end of the day, the mediator may make
Speaker 1: a suggestion or try to bring the two parties closer
Speaker 1: to a resolution, but if one or both parties doesn't
Speaker 1: like the decision, they can walk away from the table. Arbitration,
Speaker 1: on the other hand, is binding, and more importantly, the
Speaker 1: rules of evidence that you're afforded to in a court
Speaker 1: don't exist in an arbitration. And also more importantly, there's
Speaker 1: no appeal. So, once you go to an arbitrator and
Speaker 1: that arbitrator makes a decision based usually on not all
Speaker 1: the facts, because not all the facts are discoverable i e.
Speaker 1: You get them through evidence, you're stuck with that. Decisions
Speaker 1: up happens when the power and potential of every employee
Speaker 1: and leader in your workforce is released and corn Ferry
Speaker 1: can get you there by aligning your people to your strategy, attracting, developing, engaging,
Speaker 1: and rewarding them to reach new heights. With corn Ferry,
Speaker 1: you get a partner who truly understands people, leadership, and
Speaker 1: the new landscape of work, a partner who knows how
Speaker 1: to take your business up. Learn more at corn Ferry
Speaker 1: dot com slash up. So, I want to go back
Speaker 1: to noncompete. Um, that was something else that we saw
Speaker 1: in the news recently in our industry specifically. UM. I
Speaker 1: don't know if you saw this, but some BuzzFeed staffers
Speaker 1: were fired for making a web video that wasn't a
Speaker 1: BuzzFeed web video while they were buzz Sweed employees. UM.
Speaker 1: And we've been told, or they've said that everybody had
Speaker 1: done that and everybody was doing it, but then the
Speaker 1: company decided to make an example out of them, and
Speaker 1: it was. It was a pretty big conversation about non
Speaker 1: competes in the creative industry because I don't think anybody
Speaker 1: had really thought about it before then. So I want
Speaker 1: to ask you kind of what is a noncompete? Are
Speaker 1: there cases where am I just signing away my rights
Speaker 1: to do anything else? Are there exceptions? Sure? In New
Speaker 1: York especially, the courts will look at noncompetes uh and
Speaker 1: highly scrutinized them, you know, especially in the creative industry,
Speaker 1: because the courts, just like everybody else, wants people to work,
Speaker 1: and non competes are a restrictive covenant. They prevent people
Speaker 1: from working, and we want as many people in the
Speaker 1: workforce as possible doing as much good for you know,
Speaker 1: our fellow man as possible. So, yes, an employer can
Speaker 1: put and usually does put a non compete in any
Speaker 1: employment arrangement or agreement to the extent that that non
Speaker 1: compete is actually enforceable. It's a lot different than binding
Speaker 1: arbitration agreements, which or arbitration agreements which usually are enforceable
Speaker 1: non competes. On the other hand, the employee is in
Speaker 1: the driver's seat. The burden is on the employer to
Speaker 1: show really three facets to make a non compete justifiable
Speaker 1: and allow the courts to uphold it. The first is
Speaker 1: that it can't be broader than required to protect the
Speaker 1: employer's legitimate interest. It can't impose undo hardship on the employee,
Speaker 1: and it can't injure the public. The first is really
Speaker 1: the biggest hurdle. You know, there's no specific defined thing
Speaker 1: for employers legitimate interest, but you know, things like trade secrets, copyrights,
Speaker 1: taking very important employees away from the corporation, that's in
Speaker 1: the employer's best interest. But just you making a video
Speaker 1: that doesn't necessarily compete with buzz feed, or you jumping
Speaker 1: ship to a different employer without taking um valuable employees
Speaker 1: from employer A to employer B, that's not in the
Speaker 1: employer's best interest. And yes, they can send you a
Speaker 1: cease and desist letter, but those are just words on
Speaker 1: a paper. I wanted to ask you about that in
Speaker 1: terms of the practical effects of UH non competes. As
Speaker 1: you said, the law makes it very difficult for an
Speaker 1: employer to enforce that noncompete. But practically speaking, can they
Speaker 1: through the saber rattling, if you will, of cease and
Speaker 1: desist letters and the threat of prolonged legal action that you,
Speaker 1: a single employee, may not be able to support, can
Speaker 1: they somehow almost intimidate people effect, you know, which comes
Speaker 1: to the same effect almost as enforcing the noncompete. Yeah,
Speaker 1: it almost seems like all of this is intimidation, very
Speaker 1: very much. So, it's a it's a lot of saber rattling,
Speaker 1: and it's a lot of David versus Goliath intimidation tactics.
Speaker 1: You're a little employee, they're a big company. They send
Speaker 1: you a threatening letter on legal letterhead. You go, woe
Speaker 1: is me? I just wanted to get a better job
Speaker 1: and better myself, And just to be clear, So when
Speaker 1: they decide to file that, it goes to the individual,
Speaker 1: not to your new employer. It could go to both.
Speaker 1: They could go to both, but you could be affected
Speaker 1: by it, just as as you're saying, little old me yes.
Speaker 1: So usually it will be sent directly to you, and
Speaker 1: it will be a strongly worded letter that says, hey,
Speaker 1: we know that you're you know, cohooting with the enemy
Speaker 1: and you better stop. And you signed this agreement which
Speaker 1: binds you not to work in a ten square mile
Speaker 1: radius of New York City for six years. Good luck.
Speaker 1: That's not going to be enforceable. But when we're talking
Speaker 1: about the Fox News Roger Ales sexual harassment debacle, um,
Speaker 1: if someone you know, many women wouldn't speak about it
Speaker 1: because they had signed ndias or so they say. If
Speaker 1: they had broken that NDA and then Fox sued, wouldn't
Speaker 1: that look really bad for Fox? Or is that is
Speaker 1: there that NDA enforceable if they if Fox had done
Speaker 1: something rong? Like how does that work? Or is it
Speaker 1: just intimidation again? And people don't want to get into
Speaker 1: lawsuits and people don't want to be the person who
Speaker 1: broke an NDIA. Well, are you talking about if a
Speaker 1: settlement has occurred and then there's a confidentiality provision of
Speaker 1: that settlement? I guess that's one part or well, I
Speaker 1: guess so that's a little bit different from a you know,
Speaker 1: a standard n d A and and Fox and you know,
Speaker 1: I I've had potential Fox News clients and I'm just
Speaker 1: gonna go out on a woman said, I don't think
Speaker 1: it's good to be a woman and work for Fox
Speaker 1: News in this day and age. Um, they may have
Speaker 1: a provision in there that says that you can't talk
Speaker 1: about um litigation or potential litigation. I don't think that's
Speaker 1: very enforceable. Interesting, or like if you have a lot
Speaker 1: I didn't know this happens. You sign a severance agreement
Speaker 1: and and it as an n d A and you've
Speaker 1: been sexually harassed? Was that enforceable? That's different because when
Speaker 1: you sign a severance agreement, You've been given consideration, and
Speaker 1: consideration is the golden rule here. That's contracts one oh one.
Speaker 1: What is an enforceable contract? You need bargain for consideration.
Speaker 1: Person A needs to give up something of value i e.
Speaker 1: And employment in return for person B giving them something
Speaker 1: of value I eat. Money. Once money and employment is
Speaker 1: exchanged hands, then you have consideration. In a severance agreement,
Speaker 1: you're terminating your employment relationship. And you can go the
Speaker 1: route of not accepting any severance and not releasing any claims,
Speaker 1: and then every the whole world is available to you,
Speaker 1: or they can make a nice, juicy golden parachute for you,
Speaker 1: and you can then be forced or required to sign
Speaker 1: a general release in relation to the severance agreement. Once
Speaker 1: you sign a general release, that's pretty much that's the
Speaker 1: end of the road. You've accepted your money effectively as
Speaker 1: hush money, uh in terms of Fox News, and the
Speaker 1: NDA will likely be enforceable. So what can employees do?
Speaker 1: You know, you starting your job and most people don't
Speaker 1: even read these things. You get, you know, flori of
Speaker 1: emails and some paper mail maybe as well, including these agreements,
Speaker 1: and you feel lucky and I'll sign anything I instruct
Speaker 1: our caution all clients and in general speak to a lawyer.
Speaker 1: You know, nothing is gonna happen overnight. And if the
Speaker 1: employer is putting a gun to your head and saying
Speaker 1: sign this right now or else the job is gone,
Speaker 1: there's something there's more problems than just that with the
Speaker 1: with the employer. So first things first, you should always
Speaker 1: contact a lawyer to review through the employment agreement or
Speaker 1: arrangement and see if there's any um area for movement
Speaker 1: or negotiation. Two, you should document any conversations that you
Speaker 1: have with the employer, showing the employer that you may
Speaker 1: want to change this provision you have questions about that provision.
Speaker 1: The more documentation that you have um to show you
Speaker 1: know if and when there's a problem later down the road,
Speaker 1: the better. It's certainly always conferred with a lawyer. Going
Speaker 1: back to that heavy time when you've just been hired
Speaker 1: and you're going through the process of sort of onboarding
Speaker 1: to the company, and you get that employment agreement just
Speaker 1: because it's been written down and put on a piece
Speaker 1: of paper, though from what I'm getting from what you're saying,
Speaker 1: doesn't make it final. Everything is negotiable, and I presume
Speaker 1: that employment agreements can be changed. It's just words on
Speaker 1: a paper, Sam. So when they give you that employment agreement,
Speaker 1: that's what we call boiler plate agreement. Unless you're some
Speaker 1: specialized superhero, that's what they've given to you, and everybody
Speaker 1: else that's come before you, and everybody else that it
Speaker 1: will come after you. There is nothing to prevent you,
Speaker 1: as an employee from picking up the phone or looking
Speaker 1: your manager's hiring HR person straight in the eye and saying, listen,
Speaker 1: I have a little problem with X, Y and Z,
Speaker 1: And they can go in and blue line, red line,
Speaker 1: black line, whatever line you want to call it that
Speaker 1: agreement and change it to tailor your needs. And if
Speaker 1: you are a valuable employee and the employer does want
Speaker 1: to keep you on, that's in their best interest to
Speaker 1: make you happy, to make you feel comfortable, because nobody
Speaker 1: wants to start a new job where you know they
Speaker 1: feel intimidated or they've signed something that they don't understand.
Speaker 1: So you heard it from the lawyer, A lawyer, lawyers,
Speaker 1: let's get a lawyer. Um, Well, thank you so much.
Speaker 1: I think those are all the questions I have. Likewise,
Speaker 1: it was really great having you. Thank you so much
Speaker 1: for having me on guys. Thanks pleasure. So that was
Speaker 1: kind of encouraging. I mean it's definitely informative. I'm glad
Speaker 1: that I and a little bit empowering too, I think. Yeah,
Speaker 1: I guess it's like, don't be so scared by a
Speaker 1: piece of paper. I think that is like the takeaway
Speaker 1: from both when you are going into signing an agreement
Speaker 1: or from when you like potentially think you break one.
Speaker 1: Like right, There's just nothing is really ironclad. The power
Speaker 1: of letterhead is illusory. Yeah, you shouldn't be intimidated by it,
Speaker 1: and you probably have a little bit more negotiating power
Speaker 1: than you think. Yeah yeah, yeah, So there you go. People,
Speaker 1: sorry for us. Yeah, okay, now it's time for half
Speaker 1: big takes, happy fake takes. Half big takes are when
Speaker 1: we have a great opinion on something and the only
Speaker 1: place that we can air that opinion is right here.
Speaker 1: So Sam, what's your hat pick? Take? So, I been
Speaker 1: doing a fair bit of karaoke lately, and let's be honest,
Speaker 1: when am I not? But I surely do. I have
Speaker 1: been thinking a little bit about karaoke with coworkers. I
Speaker 1: think it's a tremendously good bonding experience for people who
Speaker 1: work together. There's something about sort of mutually assured embarrassment
Speaker 1: that helps kind of break down some of the barriers.
Speaker 1: But there are rules that you do need to follow
Speaker 1: that are specific to when you're with co workers as
Speaker 1: opposed to friends. For starters, I would say that you
Speaker 1: should get everybody a little bit drunk before you suggest
Speaker 1: the karaoke. People will be much more open to it
Speaker 1: after a couple of drinks at like your after work
Speaker 1: bar than if you just spring it on them in
Speaker 1: the office. And then the other thing you want to
Speaker 1: remember is that karaoke is actually a group activity. It's
Speaker 1: not so much about your own specific performance. So you
Speaker 1: want to pick songs that everybody can enjoy and hopefully
Speaker 1: participate in. Can I ask what your song is? Everyone
Speaker 1: has a karaokes on, a practice karaoke, here has a
Speaker 1: karaokes on. Oh I have a list I been on
Speaker 1: my phone so I never forget them. But I like
Speaker 1: to open up with a nice, sort of group friendly song,
Speaker 1: maybe like We Built This City on Rock and Roll
Speaker 1: by Starship That's a good one, or Freedom ninety by
Speaker 1: George Michael. Everybody can sort of participate later in the evening.
Speaker 1: If you want to come out with a few solo
Speaker 1: show stoppers, that's fine, but get everybody involved from the beginning.
Speaker 1: My karaoke song, thank you for asking Sam. Of course,
Speaker 1: this is how we do it by Montell Jordan's It's
Speaker 1: the only karaoke song I can do, and I've practiced
Speaker 1: it alone in my apartment many times. So when you
Speaker 1: do it now, do you not even look at the screen? Well,
Speaker 1: I came on recently and I had forgotten a lot
Speaker 1: of the words, So I think it was good to
Speaker 1: have a Yeah. You have to keep that right at
Speaker 1: the top of your head. Yeah. So my half big
Speaker 1: take for your half bag take is that you need
Speaker 1: to practice your karaoke songs alone. We can do an
Speaker 1: entire episode on karaoke. I have many thoughts. No, I know,
Speaker 1: we'll have a full bake take. Yes, can't wait. My
Speaker 1: half big take is so half big I don't even
Speaker 1: know what it is. But something about email subject lines.
Speaker 1: This is also in the news last week, um and
Speaker 1: some Hillary Clinton released emails. There was an argument the scandal.
Speaker 1: There was an argument over email subject lines, and this
Speaker 1: man said that he wants better email subject lines. It
Speaker 1: needs to convey what is in the email, and then
Speaker 1: he said, this discussion has been broken down along gender lines.
Speaker 1: What so I'm not really sure, like what the male
Speaker 1: versus female email subject line? Yeah, I've never been able
Speaker 1: to detect the gender of the sender by the subject line. No, no, So,
Speaker 1: I guess I think a lot about email subject lines,
Speaker 1: and I do think that you want to put kind
Speaker 1: of more information in the subject line than you think
Speaker 1: you need to. I agree. I make it almost like
Speaker 1: like a sentence. I feel like I want the subject
Speaker 1: line to be what the recipient would label it. Yeah you, yeah,
Speaker 1: you mentioned this to me. Yeah. It's like so that
Speaker 1: when they're looking in their inbox quickly they can know
Speaker 1: exactly what it is, and you're doing them. That's so
Speaker 1: selfless of you. I'm a very generous person, Becca. I
Speaker 1: think that's pretty clear. Yes, all right, Well that has
Speaker 1: been happ Big takes, halfag takes. Thanks for listening to
Speaker 1: another episode of game Plan. You can find me on Twitter.
Speaker 1: I'm at r C. Greenfield and I am at Sam
Speaker 1: Grobart and well see you next week. By get the
Speaker 1: most from your people and send your business soaring with
Speaker 1: corn Ferry from Executive Search to talent strategy, leadership development,
Speaker 1: rewards and succession planning. Corn Ferry knows Up is more
Speaker 1: than a direction, it's your future. Learn more corn ferry
Speaker 1: dot com, slash up. What's the Z for? My middle
Speaker 1: name is? O eight has always been a part of
Speaker 1: my brand.