When you’re offered a new job, it’s always exciting to think about the opportunities and challenges that lie ahead. However, before you start your new role, there is an important legal document that you’ll need to review and sign: your employment contract. An employment contract sets out the terms of your employment, including your job responsibilities, salary, benefits, and other important details. In this article, we’ll explore what express terms are, why they’re important, and provide examples of common express terms found in employment contracts.
What are Express Terms?
Express terms are specific conditions of an employment contract that have been explicitly agreed upon by both the employer and employee. These terms can be written or verbal, but most employment agreements will include a written contract outlining the express terms of the employment. Express terms may cover a wide range of topics, including:
- Job title and description
- Salary and benefits
- Hours of work
- Termination clause
- Probationary period
- Confidentiality and non-disclosure agreements
- Non-compete clauses
- Intellectual property rights
- Restrictive covenants
Why are Express Terms Important?
Express terms are important because they provide clarity and certainty for both employers and employees. They outline the legal rights and obligations of both parties, helping to prevent misunderstandings or disputes that may arise during the course of employment. When express terms are included in a written contract, they also provide evidence of the parties’ intentions if a dispute arises in the future.
Examples of Common Express Terms
- Job Title and Description
The job title and description outlines the role and responsibilities of the employee. It includes details such as the hours of work, salary, and benefits. The job title and description should accurately reflect the duties and responsibilities that the employee will be expected to perform.
a. Job Duties
The job description should specify the duties that the employee will be responsible for. This could include specific tasks or responsibilities, as well as general expectations for performance.
b. Hours of Work
The job description should specify the expected hours of work, including any overtime or on-call requirements. If the position is part-time or flexible, the job description should specify the expected schedule and any flexibility requirements.
c. Salary and Benefits
The job description should specify the salary and benefits that the employee will receive. This could include health insurance, retirement plans, vacation time, sick leave, and other benefits.
- Termination Clause
The termination clause outlines the circumstances under which the employment may be terminated, including notice periods and severance pay. The termination clause is an important express term because it sets out the rights and obligations of both parties in the event that the employment relationship comes to an end.
a. Notice Period
The notice period is the amount of time that either party must provide to terminate the employment relationship. The notice period may vary depending on the length of service, job title, and other factors.
b. Severance Pay
Severance pay is a payment made by the employer to the employee upon termination of employment. The amount of severance pay may vary depending on the length of service and other factors.
c. Grounds for Termination
The termination clause should specify the grounds for termination. This could include misconduct, poor performance, redundancy, or other reasons.
- Confidentiality and Non-Disclosure Agreements
Confidentiality clauses protect the employer’s confidential information from being disclosed by the employee to third parties. Non-disclosure agreements (NDAs) are similar to confidentiality clauses, but they may also apply to information that is not strictly confidential.
a. Scope of Confidentiality
The confidentiality clause or NDA should specify the scope of the information that is considered confidential. This could include trade secrets, financial information, customer data, or other types of information.
b. Duration of Confidentiality
The confidentiality clause or NDA should specify the duration of the confidentiality obligation. This could be for a fixed period of time, or it could be indefinite.
c. Consequences of Breach
The confidentiality clause or NDA should specify the consequences of breaching the confidentiality obligation. This could include termination of employment, legal action, or other remedies.
- Non-Compete Clauses
A non-compete clause prevents the employee from working for a competitor of the employer for a certain period of time after leaving the employment. The purpose of a non-compete clause is to protect the employer’s business interests by preventing the employee from using the knowledge and skills gained during employment to compete with the employer.
a. Scope of Restriction
The non-compete clause should specify the scope of the restriction. This could include the geographical area, type of business, or length of time that the employee is prohibited from competing.
b. Reasonableness of Restriction
The non-compete clause should be reasonable in scope and duration. Courts may refuse to enforce a non-compete clause if it is deemed overly restrictive or not necessary to protect the employer’s business interests.
c. Exemptions
The non-compete clause may include exemptions for certain types of employment, such as self-employment, working for a non-competitor, or working in a different geographical area.
- Intellectual Property Rights
Intellectual property clauses protect the ownership rights of the employer over any work created by the employee during the course of employment. This could include inventions, designs, software code, or other intellectual property.
a. Ownership of Intellectual Property
The intellectual property clause should specify who owns the intellectual property created during the course of employment. In most cases, the employer will own the intellectual property, but there may be exceptions for certain types of work or circumstances.
b. Use of Intellectual Property
The intellectual property clause should specify how the intellectual property can be used. This could include restrictions on sharing or distributing the intellectual property, or requirements for attribution or acknowledgement.
c. Obligations upon Termination
The intellectual property clause should specify what happens to the intellectual property upon termination of employment. This could include transferring ownership to the employer, providing access to the intellectual property, or destroying any copies of the intellectual property.
- Restrictive Covenants
Restrictive covenants limit the employee’s freedom to engage in certain activities post-employment, such as soliciting clients or competing against the employer. The purpose of a restrictive covenant is to protect the employer’s business interests by preventing the employee from using confidential information or knowledge gained during employment to compete with the employer.
a. Scope of Restriction
The restrictive covenant should specify the scope of the restriction. This could include the geographical area, type of business, or length of time that the employee is prohibited from engaging in certain activities.
b. Reasonableness of Restriction
The restrictive covenant should be reasonable in scope and duration. Courts may refuse to enforce a restrictive covenant if it is deemed overly restrictive or not necessary to protect the employer’s business interests.
c. Exemptions
The restrictive covenant may include exemptions for certain types of employment, such as self-employment, working for a non-competitor, or working in a different geographical area.
Tips for Reviewing and Negotiating Express Terms
- Read the Contract Carefully
When you receive your employment contract, take the time to read it carefully. Make sure that you understand all of the express terms and how they apply to your employment. If you have any questions or concerns, don’t be afraid to ask.
- Identify Key Terms
Identify the key terms that are most important to you, such as salary, benefits, job responsibilities, and termination clauses. Think about what you’re willing to negotiate on and what terms are non-negotiable.
- Consider Your Market Value
Research your market value to get an idea of what similar positions are paying in your industry and location. This will help you negotiate a fair salary and benefits package.
- Propose Specific Changes
If there are specific changes or additions that you would like to see in the contract, propose them to your employer. Be prepared to explain why these changes are important to you.
- Be Prepared to Negotiate
Negotiating your employment contract can take some time, so be patient and prepared to negotiate back and forth with your employer. Remember that both parties want to reach an agreement that is fair and reasonable.
- Seek Legal Advice
If you’re unsure about any of the express terms in your employment contract, or if you need help negotiating with your employer, consider seeking legal advice from an employment lawyer.
Conclusion
Understanding express terms in an employment contract is essential for protecting your rights and expectations as an employee. By reviewing and negotiating the express terms of your employment contract, you can ensure that you’re entering into a fair and reasonable employment relationship with your employer. Remember to read the contract carefully, identify key terms, and be prepared to negotiate to reach an agreement that works for both parties.