As an employment lawyer, I see a lot of disputes arise during employment and at the time of termination that could have easily been avoided by reaching agreement prior to starting employment. Especially with an improving economy, employees should be more aggressive in making sure they are positioned for success during and after their employment. Many people are timid about negotiating terms of employment on the front end out of a fear that it will scare away the prospective employer. However, it is rare that a respectful dialogue over terms of employment will scare away an employer. And, if it does cause an offer to fall apart, then it is likely this was not the right opportunity. Similarly, a dialogue around terms of employment can lead the prospective employee to gain information that allows them to realize that they are not interested in working for the prospective employer.
If you are interested in a particular job because of the work you will perform or responsibilities you will have, make sure to get these critical elements of your employment in writing. It is likely that your offer letter or the company handbook will disavow these important oral representations made during your recruitment. Therefore, if you want to rely upon them, you should make sure they are in writing. By seeking this assurance in writing, employees can often find out how much commitment employers have to promises made during recruitment.
If you are giving up job security in switching jobs, it may be appropriate to negotiate a term to your contract. For instance, if your new job is with a start-up company, an employee can protect themselves against the risk that Company will quickly change courses and eliminate their job by negotiating a term, such as two years, or an agreed upon severance amount in the case of termination.
If you are leaving behind significant long-term compensation (i.e. stock options or unvested retirement) at your new employment, employees should attempt to negotiate compensation for this long-term compensation that has been forfeited. Employers are always be more receptive to these suggestions when the compensation mirrors the long-term compensation left behind. For instance, when employees leave stock options behind, they should seek stock options or a bonus if a particular revenue goal is met.
Lastly, any employee facing a non-compete should think carefully before agreeing to the non-competition agreement. These agreements are more likely enforceable than not. I have very rarely met an employee that was satisified with the terms in their non-competition agreement. Employees that are comfortable with their non-competition agreement are typically paid by the former employer for the period of time it take them to find a job that does not violated the agreement. This usually leads an employer to agree to waive the non-competition agreement completely when they are forced to pay to enforce it. Alternatively, employees often propose that the non-competition provision is changed to a non-solicitation provision. This prevents an employee from contacting the prior employers clients, but does not prevent employees from working in a particular field.
With unemployment at very low levels, employees should start to think critically about negotiating their terms of employment on the front end. Employers became more aggressive in their “form” agreements during the Great Recession and employees should start to push back now that they have leverage in these negotiations.