You’ve been asked by Acme to draft an employment agreement for Jane Doe, Acme’s new head of sales. As part of his muttered instructions to you, Roger Roe, Acme’s general counsel, says, “Oh, and Jane should work out of our Budapest office a couple of months a year.”
It’s a simple idea, but some issues spring to mind. Allow me to share them with you, simply as an example of issue spotting:
- Does “a couple of months” refer to a single period?
- If so, does it refer to a period of two of the twelve months of the year, or can it also refer to a period of one day to the beginning of the corresponding day in the next-but-one month?
- Or could the “couple of months” requirement instead be met by accumulating Budapest work days over the course of two or more visits? If so, does a visit have to be a minimum number of days for a visit to count toward the requirement? And do weekends and holidays count toward the requirement? Days spent traveling too and from Budapest?
- And what does “year” mean? Does it mean the period from the date of Jane’s employment agreement to the beginning of the corresponding day the next year? Or does it mean twelve months beginning January 1?
- If the latter meaning applies, how do you handle partial years, if Jane’s employment agreement is dated other than January 1?
- And what does “work out of the Budapest office” mean? Can she use it as a base of operations, even if she spends most of her time elsewhere? Or does Jane have to be physically present in the Budapest office during specified hours? For a number of hours each workday? Each week, excluding holidays? If so, what about business travel?
- Whatever “a couple of months” means, does the company get to specify restrictions on when she can work in the Budapest office? If so, are those restrictions to be stated in the contract, or can the company instead set those restrictions on an ongoing basis? If so, how much advance notice should Jane get?
- Who pays Jane’s expenses? Where will she stay? Does she get a car? What about her family? How is her salary handled? What are the tax implications? The immigration implications?
I’m sure you could think of other issues.
The moral of this exercise is that any aspect of a deal can raise a host of issues. It’s the drafter’s job to flush them out and determine the extent to which they should be addressed in the contract and, if so, how.