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