The Importance of the Employment Contract - Term Paper Example

? Analyzing a Contract Background of the Contract The main purpose of the employment contract is to provide a detailed of the employment including working hours, wage rate along with various terms and conditions regarding role of the employment. More apparently, the employment agreements are legally binding papers that significantly characterize the terms, provisions along with certain privileges and conditions of the employment. It is always important both for the employer and the employee to seek the legal counsel before signing the agreement documents (U.S. Department of Labor. n.d.). The employment contract is one of the essential documents where it standardizes and regulates terms and conditions of the employment between the employee and the employer. The process stipulates about the offerings of the employers in terms of benefits, legislation and the contract also specifies regarding the entitlement of the employee as grants in terms of organizational policy, labor legislation and company benefits. Furthermore, the employment contract is also important to regulate the employee behaviors within the workplace because the organizational policies and regulations along with other disciplinary systems are the major parts of the employment contract. The employment contracts can be characterized into several types such as permanent employment, probation employment, fixed employment and project employment (SA Labour Guide, 2012). The job profile for which the employment contract has been prepared is personal assistant. The parties involved will be the employee seeking a job role as a personal assistant and the employer who is providing the specified job. This particular contract is being used in order to set forth the job related working conditions that would be provided by the employer to the employee for rendering employment. The selected employment contract does not involve any third party during the contractual process. Explanation of the Employment Contract Under the Governing Law The employment contract involves certain factors regarding the roles and the responsibilities that are mentioned by the employer in terms of providing employment. The employment contract within the United States considers administrative rules and legislations framework which are interpreted and practiced under the employment law of the country. The employment law of the country is entailed under the consideration of both federal and state government along with administrative guideline and judicial precedent (HG.Org, 2012). The various types of employment terms and conditions can be characterized in several norms. A few of those regulations are discussed below: Duties and Responsibilities The duties and the responsibilities can be considered among the fundamental factors, which denote the job or tasks and their detailed description. The factor significantly classifies the various roles of the employment including job description, disciplinary norms and nature of the designated position. Moreover, the employers are also authorized to carry out additional reasonable obligations as per the requirement of the enterprise. Salary According to the Fair Labor Standards Act (FLSA) of 1938, the minimum wage of the employees should not be less than USD 7.25 per hour which has been amended and has been effective from July 24, 2009. In the similar context, it has also stated regarding the wage for the youth that it should not be less than USD 4.25 per hour through the first 90 days of employment under the employer (U.S. Department of Labor, n.d.). Probationary Period According to the contract of employment, the probationary period is generally conducted at the starting phase of the employment. The employer can sack the employee during this probationary period without any notice or caution letter. The employers also may often decide to lengthen the probationary period according to the performance or any other work related concerns. Moreover, the employment rights regarding monetary benefits and holidays are also not provided for the employee(s) under the probationary period. Hours of Work The working hours within the employment contract signifies the actual working time for the organization. According to the contract of employment, the actual operational hour of the employees cannot surpass 48 hours in a week. However, the employees also can agree to work additional hours according to the reasonable conditions and requests of the employer. Fair Judgment of Employment Contract The employment contract has been considered as one of the major influencing factors of the employment law in the US. In the context of employment law in the US, it can be observed that certain guidelines have been enforced by the Department of Labor (DOL) and it involves five major parts that are organized by the category of labor standards. Those parts can be recognized as: “Wages and Hours Worked Safety and Health Standards Health Benefits, Retirement Standards, and Workers’ Compensation Work Authorization for Non-US Citizens, and Other Workplace Standards” (U.S. Department of Labor, 2012). On the other hand, the employment law of the US also addresses two parts for the employers holding federal contract for employment, those are: Working Conditions, and Equal Opportunity in Employment (U.S. Department of Labor, 2012) Owing to the various evidences and employment sections within the employment law of the US, it can be observed that the employment contract entails certain guidelines with regard to favoring both the contractual parties. Moreover, the Federal Regulations for the contract of employment offers the employees rights in relation to the process of agreement. The aspect of employee rights provides the employees to file complaint regarding any misconduct of the employer as per the agreement by informing the local ‘wage and hour division office’. Moreover, the employee rights also facilitate the employees to claim for their actual wage, equal amount of liquidated damages or according to the phrases of the agreement that have been signed by both the parties during the contract. In addition, the employment rights for the employees also involves certain beneficial activities to provide actual and appropriate rights to acquire their wages and basic provisions according to the agreement made by the employers (U.S. Department of Labor, 2012). Integration and Parole Evidence of the Employment Contract In relation to the employment contract in the US, it can be considered that the observed employment contract carries out a partial integration according to the US employment law. However, the employment law of the US involves various Federal Acts considering the employment contract between employee and employer. Those Federal Acts can be recognized as ‘The Americans with Disabilities Act’, ‘The Rehabilitation Act’, ‘The Workforce Investment Act’, ‘The Vietnam Era Veteran’s Readjustment Assistance Act’ and ‘The Civil Service Reform Act’ (U.S. Department of Labor, 2012). The parole evidence rule has been codified in ‘Code of Civil Procedure’ under the section of 1856. The rule of parole evidence governs the identification and sorts out the disputes of evidence within the contract or agreement. The rule involves the authority to add or modify the evidences whether it is written or oral of the contemporaneous contract (Klein & Wilson, 2012). From the perspective of the employment agreement, when both the parties memorialize the contract in writing, all contemporaneous and oral agreements merge within the written contract which can also be considered as an integration. The written employment contract might not be changed, modified or varied by parole evidence by considering that it has been officially executed by an individual who determines to represent the ultimate and complete phrase of the agreement with his/her understanding (U.S. Department of Labor, 2012). 5. Assignability of Rights It can be frequently observed that the employers significantly rely on the contracts signed by the employees to assert legal title to the claimed patents. These contracts at times contain certain clauses that assign the patent rights of the inventors to the employers and require the assistance of the employee in order to secure the patent rights. In relation to the allegation of employment contract, it requires to be authorized by the federal or state government with an appropriate form of evidence in order to modify or develop the agreement. With this concern, the employment contract of the inventors’ with integrated sections is automatically assigned to the employer for any future patent rights (Paul, Kacedon, & Dubal, 2012) An employer frequently composes a judgment of an employee based on the interview, education along with the prior experience of the candidate. The contract of employment between the employee and the employer is almost certainly be non-assignable if the employment contract does not make it explicit to the employee regarding the roles and the responsibilities in the organization. In order to protect all parties involved the terms and conditions related to employment contract need to be explicitly mentioned within the contract so that any hidden issues does not arise in the future (Kramer, 2004). Third Party Obligation in Employment Contract In the context of the employment contract for personal assistant, it has been observed that an obligor can appoint another person to perform in the contractual initiatives with the first party. With this concern, the third party’s obligation within the law of contract can be identified to be a scenario in which an individual has the right to prosecute on an agreement, although not having the authority to be an active party for the agreement. This contractual right of the third party is known as ‘jus tertii’. The third party is observed to be the intended beneficiary of the agreement. However, in the context of employment contract, it is frequently found to be invalid without the presence of the contractual party. It is important to present both the contractual party for the fulfillment of the contract among the employer and the employee (Hempsons Solicitors, 2011). In relation to the third party recipient, the contract of employment involves certain regulations in the process of agreement between the employer and the employee. For instance, if a manufacturing organization is the third party recipient then in the employment contract communication can be made regarding the working condition within the manufacturing divisions including appropriate handling of the machinery equipments that are used during the manufacturing process (Prince, 1984). References Hempsons Solicitors. (2011). The importance of written employment contracts. Retrieved from http://www.hempsons.co.uk/sectors/third-sector/news/news-briefs/february-2011-issue-4/article/the-importance-of-written-employment-contracts/eb95eb956f/?tx_ttnews%5BbackPid%5D=1025 HG.Org. (2012). Employment law - guide to labor law. Retrieved from http://www.hg.org/employ.html Klein & Wilson. (2012). The Parol evidence rule: The gatekeeper of evidence in contract cases. Retrieved from http://www.kleinandwilson.com/CM/Publications-Media/The-Parol-Evidence-Rule-The-Gatekeeper-of-Evidence-in-Contract-Cases.asp Kramer, J. G. (2004). When should contracts be assignable? An economic analysis. Retrieved from http://www.law.harvard.edu/programs/olin_center/papers/pdf/Kramer_484.pdf Paul, J. C., Kacedon, D. B., & Dubal, U. G. (2012). Employment Agreements for Employee-Inventors Should Be Drafted to Assign Patent Rights at the Time the Agreement is Signed Rather than Requiring Later Acts. Retrieved from http://www.finnegan.com/resources/articles/articlesdetail.aspx?news=08385db5-202a-4e98-92f0-df1d4080cfa3 Prince, H. G. (1984). Perfecting the Third Party Beneficiary Standing Rule under Section 302 of the Restatement. Boston College Law Review 25 (5), pp. 918-997. SA Labour Guide. (2012). The importance of the employment contract. Retrieved from http://www.labourguide.co.za/contracts-of-employment/the-importance-of-the-employment-contract-649 U.S. Department of Labor. (n.d.). Wages and hours worked: Minimum wage and overtime pay. Retrieved from http://www.dol.gov/compliance/guide/minwage.htm#BasicPro Read More