If you are a business executive contemplating a change in employment, you are, of course, free to negotiate the terms of your employment agreement
on your own. As a practical matter, though, you are more likely to obtain a favorable and comprehensive employment package if you negotiate the terms of your agreement in consultation with an experienced New York executive employment lawyer. At Hiller, PC, our executive employment lawyers, understand the complexities and nuances of New York employment law and can help you avoid common pitfalls and traps for the unwary.
Why Do I Need a Written Agreement?
New York is an “at will” employment state. This means that, with very few exceptions, the employment relationship may be terminated, by either party, at any time, for any reason or for no reason at all. A written agreement serves to define the terms and expectations of both the employer and the employee; to provide stability in the relationship; and to minimize the number and impact of future disputes. As an executive-level employee, your employment and, particularly, the termination of that employment, will have significant personal, financial, and legal implications, for you and for the company. Because the stakes are so high, anyone considering an executive-level position should always negotiate a written agreement, with the counsel of a knowledgeable New York executive employment lawyer.
What Is Negotiable?
Just about everything is negotiable, but the following questions should be asked in negotiating the key terms of every executive employment agreement:
Terms of Employment
What will your job title be? What are your job duties and responsibilities? What type of support will the company provide, in terms of personnel; technology; continuing education; travel and other expenses?
First, what is your base salary? Does this reflect the value you will bring to the company? Is it fixed? Under what circumstances can it be reduced?
Are performance bonuses part of your compensation package? If so, what are the specific triggers for payment of a performance bonus? Are bonuses subject to approval by the board of directors?
Is a signing bonus on the table? If you are giving up benefits or bonuses at your current job to take this new position, a signing bonus should be negotiated, in an amount sufficient to make you whole.
What benefits does the company offer its executives? What is the cost to you (and to the employer) of the benefits package? Does the agreement offer any protection to you and your family upon your disability or death?
Will you have an opportunity to gain a stake in the company you are helping to grow? Under what terms?
Termination of Employment Relationship
Will your employment be for a fixed term? Does the agreement provide for early termination, for cause and without cause? What constitutes “cause” for terminating the agreement? If the agreement is terminated early, what protections are in place for you and your family?
Does the proposed agreement contain a confidentiality provision? Is “confidential information” narrowly defined within the parameters of the law? How long does this provision remain in effect?
Does the agreement prohibit you from competing with the employer after the termination of your employment relationship? Is the scope of this provision narrowly defined? How long does this provision remain in effect? Are you prohibited from soliciting the employer’s clients and employees? This prohibition, too, must be narrowly circumscribed to protect your interests, as well as the employer’s.
Does the company currently offer any form of liability protection to its executives (e.g., directors and officers (D&O) liability insurance)? Will the company agree to indemnify you for actions performed within the scope of your employment?
How will disputes under the agreement be resolved – mediation? arbitration? litigation? Who will pay your attorney’s fees incurred in resolving the dispute?
Change in Company Control
What protections are available to you if there is a change in control of the company?
Contact the New York Executive Employment Lawyers at Hiller, PC
A thoughtfully negotiated and well-crafted written employment agreement is the surest way to protect your interests as you embark on a new employment venture. At Hiller, PC, our knowledge of the law and experience working with executives in a variety of industries allow us to negotiate from a position of strength and obtain favorable terms on your behalf. To schedule a free consultation with a top New York executive employment lawyer, call us today, at (212) 319-4000, or use the email form on this page to tell us about your situation. Don’t sign anything without talking to us first.