Writing Defensible Employment Agreements

Recent SEC enforcement actions against companies that have overreached in their employment agreements prompt DLA Piper attorneys to revisit a warning they had issued early last year. This post includes two useful “lists” for any company potentially at risk. One is a list of questionable provisions that some employers have inserted into separation and release agreements, questionable in the sense that in recent years the EEOC has filed actions specifically targeting them. They include the requirement to notify the company before responding to a subpoena or to a regulatory or law enforcement investigation, and a provision prohibiting employees from making “disparaging” statements about the company or its personnel. A second list includes eight steps that employers can take to help keep their employment-related documents from being challenged by the SEC, NLRB or EEOC. “Now is the time to subtract, streamline and specify,” the writers conclude. “What is not necessary should be jettisoned to protect what is important.”