Corporate executive employment comes with plenty of challenges and responsibilities. It also comes with its own set of unique legal factors. Mallon LLC has been advising corporate executives for many years on a wide variety of legal minefields that come with corporate executive employment. Some of these include:
Severance Agreement Negotiations. Death and diamonds are forever. Executive employment is not. There comes a time in almost every executive’s career when the grass is not as green as it once was. Whether recently terminated, contemplating a change of positions, or simply recognizing it is time to go, contact Mallon LLC, who has decades of experience assisting executives leave a position on the best terms available, knows the pitfalls to watch out for, and can memorialize your departure terms in a binding agreement.
Review of Employment Contracts. If our decades of employment law experience have taught us one thing, above all, it is this: many of the legal issues that executives come to us with after an employment relationship has broken down could have been avoided if the executive had come to us, to review the proposed employment agreement, before it was signed. Most employers have attorneys very experienced, and very skilled, at drafting employment agreements that strongly favor the employers. You wouldn’t swallow a lit firecracker – don’t sign a proposed employment agreement, drafted by the employer’s legal counsel, for the employer’s benefit, without having your independent counsel experienced in employment law review the proposed agreement.
Review of Consultant Agreements. For these same reasons, Mallon LLC remains available to review any proposed consulting agreement, drafted by the principal’s legal counsel. Consulting agreements present their own sets of issues. The draft agreement should be reviewed by your own independent legal counsel.
Non-competition Agreements / Restrictive Covenants. The extent to which courts will enforce non-competition agreements (also called, “restrictive covenants”) that seek to limit an executive from working in an identified field and/or geographic area, usually for a specified duration, varies significantly depending on the jurisdiction whose law applies and the terms of a particular agreement. For instance, District of Columbia courts will typically enforce restrictive covenants reasonably limited in duration and geographic scope, when such a restrictive covenant is ancillary to an agreement (such as an employment agreement) that provides a basis for the restriction. As another example, Delaware courts generally restrict employer-employee non-competition agreements to a period of one year or less, so D.C. law comes across as significantly more favorable to the employer, in this regard (D.C. courts have sometimes enforced non-competition agreements of up to two years or longer). Significantly illustrative, as well, is the decision by the D.C. Court of Appeals in Steiner v. American Friends of Lubavitch (Chabad), 177 A.3d 1246, 1261 (D.C. 2018), which involved the attempted enforcement of a restrictive covenant against a rabbi. In addressing the “public interest” factor, weighed against the asserted restraint of trade, the Court reasoned, “[o]ther courts have likewise held that, in certain professions based on personal relationships, the customers’ interest weighs more heavily against equitable enforcement of noncompete agreements.” A physician is another profession where significant public policy considerations might limit a court’s enforcement of a non-competition agreement.
Executive Compensation / Incentive Compensation. As more executive compensation plans are designed to include pay for performance, Mallon LLC’s attorneys work closely with executive clients to help ensure that compensation, performance expectations and requirements, and other important matters are well-defined and attainable, meeting the objectives of both the executive and the organization. Much or even most of your compensation may be based on year-end or other bonus pay or carry, and some of that compensation might be in the form of restricted stock or options and/or subject to deferral. These are some of the most important matters, at this point in your career - don’t be the only one at the bargaining table without an attorney.
Termination. If you are leaving one opportunity, effective employment counsel will assist, helping to ensure that you have closure, and closure on your terms. This includes effective, written confirmation of final compensation matters (including any severance), clarity as to the scope and duration of any non-competition or other agreement(s), and the extent to which a settlement agreement / release is appropriate (and, if so, its terms). As executive employment is concluding, it is also an appropriate time to evaluate whether you were dealt with as promised, and legally, by that employer – and, if not, what legal remedies you may have.
Please contact Mallon LLC to learn more about one or more of these subject areas. Please call to learn how we can bring value to your situation.