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By Robert Harris*

Employment Law Considerations For Golf-Related Businesses

In a previous article, I discussed the importance of including an appropriate dispute resolution provision in contractual agreements. Each contractual situation differs—based on the purpose of the agreement, the parties’ respective goals and bargaining power, and the types of disputes that likely are to arise. Anticipating conflict by proactively providing for mediation, arbitration or litigation can save a golf-related business substantial expense, disruption and uncertainty.

With this article, we go one step beyond the general principles described above, and focus on some of the key issues faced by golf businesses in their employee relationships. Legal disputes between employers and employees consistently rank near the top of the list in cases that occupy the dockets of courts, arbitrators and mediators. Here are a few things that you golf businesses may wish to keep in mind regarding their employee relationships.

1. Do you wish to have a formal agreement with an employee? Conventional wisdom suggests that employers wish to maintain maximum flexibility regarding their obligations to employees. Recognizing that formal employment agreements may serve to create obligations to employees, employers often choose not to provide rank-and-file employees with employment agreements. Employers may choose to rely on an offer letter that describes in general terms what the employee’s obligations will be, and specify that the relationship is one of employment “at will,” meaning that the employer has the right to terminate the relationship for cause or no cause.

2. What about contracts with senior level employees? Often, senior level employees will expect or insist upon a written employment. At minimum, they will, they will want a written document to memorialize the terms of compensation, bonus, length of employment, and circumstances that will permit termination. The details of these terms will be a function of negotiation between the parties, with the company trying to maintain as much flexibility as possible.

3. How can a company protect itself from the harm that can result when a former employee joins a competitor, or solicits customers or employees? A prudent company, especially at the time it hires a senior level employee, will take steps to protect itself from harm in the event the employee subsequently departs to work for a competitor. Employment agreements often will include non-competition, non-solicitation and confidentiality provisions that govern what an employee can—and cannot—do upon departure. The scope of these restrictions—both geographic and temporal—typically are negotiated at the time of contract formation, and must be done within the boundaries established by law.

4. Should an employer have a handbook that sets forth its policies and procedures? Businesses with more than a handful of employees typically maintain and provide employees with a written document that addresses working hours, vacations and holiday, dress codes, acceptable employee conduct, and other issues pertinent to the company. Because court decisions have sometimes found employee handbooks to create legal obligations, companies typically set forth at the outset that the handbooks are deemed to be informational only and do not constitute a contract.

5. How should a golf-related business best address employment disputes? As with any dispute, a company is best advised to plan for disputes when there is no conflict. A company can include in its handbook or in an employment agreement the procedures that it believes will best serve it in the event of a dispute. There are various options that a company may wish to consider:

Mediation. Employers often believe they are best served by requiring that a workplace dispute first be submitted to ediation. Mediation is a process where an employer and employee attempt to negotiate a resolution of the dispute with the help of a trained third party facilitator. The advantages of mediation from the employer’s standpoint are that a mediator often can dispel an employee of inflated views of the merits of a claim. Mediation, if successful, also will involve substantially less transactional cost that the legal fees required to defend a claim in court or arbitration. Mediation, as a private proceeding, also is confidential.

Arbitration. Employers sometimes provide that disputes, if unresolved either through negotiation or mediation, should be arbitrated. Many employers hold the view that an arbitrator is less likely than a judge or jury to award a windfall to an aggrieved employee. As with mediation, arbitration also is confidential, and thus an employer is able to avoid adverse publicity.

Location and Choice of Law. Sometimes, a company will have an advantage in prescribing the geographic location where a dispute will be adjudicated (either in arbitration or in court), and which state’s law shall apply.

Waiver of Jury Trial. In those instances when disputes are to be adjudicated in court, a company, if it is permitted by applicable law, may wish to include in an employment agreement a provision whereby the parties agree that a dispute will be determined by a judge and not a jury. Employers often believe that a judge will be more inclined to review an employee’s claims with skepticism, both as to liability issues and damages.

Please note that, as to each of the issues described above, one size does not fit all. A golf-related company’s actions regarding its employment relationships will vary based on the type of business, the nature of the employment relationship, the contours of the applicable law, and the company’s strategic goals. A company should not undertake to design and implement employment measures without consulting capable counsel to determine what is legally permitted and appropriate under the circumstances.

[This article may constitute Attorney Advertising in some jurisdictions. It is for informational purposes only and does not constitute legal advice.]


Credits

Originally posted by RobertHarris on 23 Aug 2011.
All contributors: LynnwoodBrown, MarleneStone, RobertHarris,
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