Section Review

Defusing Workplace Time-Bombs: Drafting Employment Agreements and Policies to Prevent Disputes, Avoid Tax Traps, and Settle Cases.

No matter where you attended law school, it is unlikely that you ever took a course that taught you how to draft an employment agreement of any kind, learning why each and every provision was included and what each protected against or ensured. In fact, many of us enter the practice of law and adopt form agreements from colleagues, books or law firm archives that are used to create the standard agreements we as employment counsel most often use. Over time, we may come to understand why certain provisions are included (or excluded) and revise provisions to reflect applicable case law or to address practical considerations learned through experience. However, for attorneys who are new to the practice of employment law or for those attorneys - like in house counsel or solo practitioners often expected to be in command of almost every area of the law - it is crucial to have a reference book that not only provides various forms of the most common employment related agreements and policies but also provides detailed annotations, commentary, case references and practical advice about the use of these form documents.

Peter M. Panken, Jeffery D. Williams & Daniel L. Hogans, et al. 2008. ALI-ABA. Softcover with CD. 170p. ISBN: 978-0-8318-0014-7. $99.

Defusing Workplace Time Bombs: Drafting Employment Agreements and Policies to Prevent Disputes, Avoid Tax Traps, and Settle Cases

Some of the highlights included in Part I are a draft executive employment agreement (drafted with a pro-employer slant) that provides provision by provision annotations and comments, a sample consulting agreement, a short non-competition and non-solicitation agreement and more lengthy agreement on proprietary information, inventions, non-solicitation and non-disclosure, and a comprehensive settlement and release agreement with detailed commentary. Part II includes two short articles. The first article provides a pithy analysis of the effect of IRS Code Section 409A on severance agreements. The second is an informative article by David J. Carr, Partner with the firm of Ice Miller in Indianapolis entitled, "Ten Traps to Avoid in Drafting Enforceable Confidentiality, Non-Compete, and Non-Solicitation Agreements." Carr's article is an enjoyable David Letterman-type countdown of all the mistakes that can be made in these agreements, how to avoid the mistakes, and numerous case citations that put some of these mistakes in context. A useful part of the Carr article is the appendix which provides a sample "Exit Interview Statement of Understanding" which could be used as a checklist or agreement to ensure against misuse of confidential business information and property upon an employee's termination of employment.

In addition to form agreements and commentary, the book also includes a number of helpful policies in Part III. Again, these policies may not be as helpful to a more seasoned employment practitioner who has probably already had to draft some of these policies to address client needs, and has perfected many of them based on long-term experience with the particular issues. However, they are wonderful starter policies for more novice attorneys dealing with issues such as managing e-mail use, record retention and destruction, assets handling, a model employer code of ethics, and addressing complaints of misconduct in the workplace. The sample policies are detailed and extensive. In fact, the drafts of each of these policies are so comprehensive that even a seasoned employment attorney may find them useful to fine tune already existing policies and procedures. For example, the sample seven page e-mail guidelines cover almost every aspect of e-mail communications in the workplace, addressing topics such as courtesy and respect in e-mail, when to use e-mail versus when to engage in a face to face conversation, checking and managing e-mail, and grappling with spam. Any employment lawyer is bound to find something in these guidelines that will make an existing favorite workplace e-mail policy even better.

The least useful section of the book and perhaps somewhat of a random addition to the text is the last section, Part IV: Illustrative Cases. Although the discussion of some of these cases was interesting and definitely within the ambit of employment law (covering issues such as communications consistent with Rule of Professional Conduct 4.2 and the self-critical analysis privilege), only a few, if any of the cases were "illustrative" of the model agreements and policies in the preceding sections. This section also seemed superfluous given that the previous sections were chock full of illustrative cases put specifically in the context of the agreements, policies or topics covered.

Overall,

ALI-ABA publications, like MCLE publications can be great references because their authors are drawn from top experts in the field. However, unlike MCLE publications which draw primarily expert Massachusetts practitioners, ALI-ABA publications draw an "all star cast of contributors" from all over the country. In this regard, one of the main drawbacks of this book for an attorney who only practices law in Massachusetts is that the form and sample agreements included in the book have been drafted by attorneys practicing law in Indiana, Michigan, New York and Washington D.C. As such, the law cited and discussed relevant to the agreements treated in this book (most of which are defined by state law) does not include Massachusetts law. Although this issue does not affect the usability of the other sections of the book as much, it may make a Massachusetts based attorney - particularly an attorney entering the employment law field - prefer to invest in a comparable MCLE publication such as the two volume and regularly supplemented,

may be such a reference book; one that can easily take its place - without taking up much space - on a new employment lawyer's bookshelf or on the bookshelf of a more experienced lawyer that may only dabble from time to time in employment related agreements and policies. In addition to a CD that contains editable versions of all of the model forms and policies included in the book, the book also contains four substantive sections: Part I - Model Agreements and Forms; Part II - Commentary; Part III - Sample Policies, and Part IV - Illustrative Cases. Defusing Workplace Time Bombs: Drafting Employment Agreements and Policies to Prevent Disputes, Avoid Tax Traps, and Settle Cases provides solid guidance and advice for entry-level employment attorneys and perhaps other more experienced attorneys with little exposure to employment law, about some of the field's most regularly negotiated agreements, frequently utilized workplace policies and related legal issues. Otherwise, and unless there is a particular agreement, policy or topic that is of interest, this book's audience is not the more experienced employment attorney. Drafting Employment Documents in Massachusetts (William B. Koffel, Ed., et al.) MCLE, 2007, which also offers sample forms on disc and costs almost twice as much. ($195 for non-members and $175 for sponsors).