Pomposity in Drafting, Part Deux: “The Executive”

As one of their assignments, students taking my course at Notre Dame Law School drafted an employment agreement. Necessarily, I prepared one too. I based it on something I had drafted a few years ago, for a redrafting project at another school.

My version used the defined term the Executive, as that was the defined term used in the contract that formed the basis for that redrafting exercise. Because I told my students to use that contract as a loose source of inspiration, they too all used the Executive.

Well, I’ve decided that I’m not keen on the Executive. Yes, executive employee is a term with legal implications, in that the Fair Labor Standards Act provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional, and outside sales employees.

But an executive employee is, after all, an employee, and I don’t see that anything is gained by wielding executive at every possible opportunity to trumpet that the employee in question isn’t one of the riff-raff. For purposes of a contract between an employer and an employee who would be classified as an executive employee, the terms of the contract would make exquisitely clear what value the company places on that employee. Insisting on using the Executive as a defined term seems unduly status-conscious.

And executive might be old-fashioned. Like 1980s old-fashioned. It brings to mind stock photos of bland people wearing wide-shouldered suits in a generic business setting, gesticulating in some ostensibly forceful way. Has executive fallen out of fashion in tech circles? After all, it’s an environment in which wearing a suit seems to have become a liability.

So I’d be inclined to use the Employee as the default defined term for all employees. For someone sufficiently exalted, one might shift to a name based defined term, with honorific. Ms. Ashurst. Or Mr. Timkins.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.