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A.

Employment Agreements and Offer Letters

Some employees have written employment agreements, which are contracts that set

out terms and conditions of employment and can modify the nature of “at-will” employment

depending on the language in the agreement. It is important to understand that offer letters

(if accepted) also create employment contracts. A well written offer letter will define the

basic terms of the employment relationship, and can be drafted to preserve at-will

employment. For tips on drafting offer letters and employment agreements see Part II,

Section 2.1(C) below.

B.

Non-Compete Agreements and Confidentiality Agreements

Non-compete agreements and confidentiality agreements, also referred to as non-

disclosure agreements or “NDAs,” are types of employment agreements that employers use

in order to protect their confidential, proprietary and trade secret information and to prevent

departing employees from stealing their employees and customers. A discussion of these

agreements can be found in Part II, Sections 2.1(D) and (E) below.

C.

Oral Contracts

Contracts may also be formed by pre-hire statements and promises, and occasionally,

by post-hire promises. For example, typical statements that may support a claim for the

existence of an oral contract include promises made in an interview concerning length of

employment, job security, disciplinary processes, income levels and future promotions.

Training interviewers and managers to be careful about making unintended promises

regarding terms and conditions of employment during the hiring process can go a long way

to avoid these issues. Further, because it is often difficult to establish what was said or not

said during an interview, as noted above, a well drafted offer letter setting out the terms of

employment is usually advisable.

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