I am often asked to draft unique contractual provisions relating not only to snow clearing services, but also to employment of key management and supervisory personnel. Some of those provisions are below, followed by sample contractual language. The clauses offered are for illustrative purposes. Consult an attorney when drafting or adopting any contractual language. At-will employment
A common form of employment is employment at will. Essentially, an employee at will may be terminated for any reason except discrimination.
“All Company employees are employed ‘At Will.’ This means that either the employee or the Company is free to end the employment relationship at any time, for any reason, with or without cause, upon two (2) weeks’ notice. The Company may terminate the employment relationship immediately at any time for cause with written notice. Nothing in this manual or in any document or statement shall limit or modify the employment at-will status of the Company’s employees.”
Most businesses spend a tremendous amount of time, money and energy developing and retaining customers. Protecting confidential business information and restricting the ability of former key personnel from trying to take away customers are vital business pursuits.
“Because the Company has expended many years and substantial costs for developing and maintaining its accounts, clients and customers, and because you will be placed in contact with many of those accounts, clients and customers in performing services for the Company, you agree not to compete with the Company for a period of one year after termination for any reason of your engagement with the Company. You expressly agree not to disclose to any other person, or use on your own behalf, any confidential information gained from the Company. In the event of your violation of this agreement, you expressly agree the Company will be entitled to temporary and permanent injunctions and, at its option, liquidated damages in an amount equal to the total gross amount you earn from competing jobs during the one-year period.” Changes to work schedules
Clients often experience staffing difficulties when employees change work schedules without prior approval.
“You are required to communicate all changes to set work schedules for any reason in advance. Last-minute work schedule changes without specific approval will not be acceptable unless discussed prior and approved by a Company Supervisor.” Payment
Many employers require key employees to submit timely and detailed reports on a regular basis. The failure of an otherwise qualified employee to submit required paperwork can lead to delays in other areas of the business, including billing.
“Payroll is processed every two weeks. You are required to properly complete all necessary paperwork in a timely fashion. If you are deficient in satisfying any requirement, the Company, at its sole discretion, may withhold partial or complete payment until such time as you have remedied any deficiencies.” Subcontracting
Although it seems silly, and generally does not apply to high-level employees, lower-level employees may try to subcontract duties they don’t wish to perform.
“It is the Company’s expectation you will personally perform all services required by your job description. In no event are you permitted to subcontract any services.” Supervision
Another basic requirement is for a key employee to act professionally at all times.
“You are responsible for the work assigned and for conducting yourself professionally at all times. At no time are you permitted to act unprofessionally, and you are expressly not permitted to violate any of the rules and guidelines contained within this manual and/or job description.”
The importance of being able to communicate with key employees is essential, especially in snow and ice management, when time is often of the essence.
“You agree to be accessible via phone at all reasonable times, and you acknowledge the importance of prompt communication with the Company. You agree to keep the Company informed of your whereabouts, and should you not be at your regularly designated phone number, you shall inform the Company of any and all phone numbers where you can be reached.”
Drug and alcohol abuse/testing
This issue presents significant employment concerns, including unavailability and incapability to perform required job functions, and potential legal ramifications for injury or damage caused by an impaired employee.
“The Company acknowledges many potential problems created by drug and alcohol abuse. The Company has an express commitment to protect people and property, and provide a safe working environment. You acknowledge the absolute requirement and necessity you report to work in proper physical condition to perform your job in a safe and efficient manner. You shall not use, possess, dispense or receive substances on or at the job, or report to work with prohibited substances in your system. Prohibited substances include illegal drugs, alcoholic beverages and any drug paraphernalia.”
“The Company may, at its sole discretion, conduct drug and alcohol testing. While random testing is not necessary, it may be necessary, at the discretion of the Company, to require a pre-employment drug and alcohol test, a test in the event a supervisor has reasonable cause to believe an employee has reported to work under the influence, or is or has been under the influence while on the job, and a test if an employee is involved in a workplace accident/or if there is a workplace injury. Any testing is at the discretion of the Company, and a failure to test on any occasion shall not restrict or limit the Company from testing in the future.” Darryl Beckman founded Beckman Roth Ogozalek, which has offices in New Jersey
and Pennsylvania. Contact him at email@example.com.