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.

9 thoughts on “Pomposity in Drafting, Part Deux: “The Executive””

  1. I’ve long thought that “politically” it’d be good for executives to sign the standard employment-agreement form [1], along with an addendum to cover executive-specific issues such as severance and the like. That way, the HR department could legitimately tell employees, “everybody signs this — even the executives sign it, along with an addendum with a few extra provisions arising from their positions.”

    [1] This presupposes that all employees sign employment agreements; in the tech world that’s the norm, mainly to nail down the employer’s ownership of IP rights, and secondarily to confirm employment-at-will.

  2. Agreed that it’s better to say “Employee.” Then have a provision that “the Employee will be a bona fide executive, exempt from the minimum wage and overtime pay requirements of the Fair Labor Standards Act,” for what it’s worth.

      • Entirely omitting language re “executive” status might leave the company just that much more naked if the gummint comes looking, especially on the “employee’s” complaint.

        As for language of intention vs. language of policy, I don’t see the advantage of the former over the latter in this case.

        Maybe better still would be language of obligation: “The Employee shall be an ‘executive’ under the FLSA and shall not do anything to alter or endanger that status.”

        That may be useless if push comes to shove, but so would contractual silence on the topic.

        • Language of obligation? That can’t possibly be correct. The employee (and for that matter the employer) has no control over whether (s)he is to be so categorized for FLSA purposes. Language of intention is what’s needed here, and perhaps some provision (which could be language of obligation, but would more likely be language of policy or discretion) for what happens if it turns out not to be the case.

        • AWB:

          If you are looking at language of obligation, maybe something more like this: “The Employee shall not (a) take any action that would be inconsistent with the Employee being an “executive employee” under the Fair Labor Standards Act or (b) contend, agree, or admit that the Employee is not an “executive employee under the FLSA.” (For the international reader, “admit” is important because one must admit or deny each allegation in a lawsuit in one’s answer to the complaint that starts the case.)


  3. US corporations have always seemed to me particularly status conscious, with a plethora of senior titles: President, Vice President, Senior Vice President, Executive Vice President, CEO, COO, CTO, etc, that bears comparison with the ranking of British peers (Duke, Marqess, Earl, Viscount, Baron). If a senior manager wants to be called an executive, it seems fairly harmless to me, but I would probably use Employee as the default.

    • Mark:

      I have a theory. Or maybe it’s a just-so story. Sales people wanted VP titles so that they could claim to be on the same level as the client personnel with whom they interact or want to interact. Then the real executives needed something to distinguish themselves from mere sales people, so bumped them up a notch to senior or executive vice president. Then the sales people started inching upwards, too. As functional hierarchies started being more common by the 80’s, you start seeing chief whatever officers. But then this invites a host of staff functions to claim similar titles, so there becomes a spread of chiefs, to degree of chief paperclip officer. So the real executives embrace both a rank title and a functional title, like Executive Vice President and General Counsel. Double-barreled titles are now the mark of real authority in the US.


      • Chris, your theory sounds plausible but it isn’t just business people, at least in the UK.
        School pupils have become students (previously only used for university students)
        Police constables have become officers
        Secretaries have become PAs
        PAs have become executive assistants
        Assistant solicitors have become associates
        Technicians have become engineers


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