Is this Employment contract legal?

[bobbysamd]

Damages

If a person has been truly wronged, or hurt, than they are entitled to damages. As much as I am entrepreneurial, and want to make money, I happen to believe that a lot of litigation these days is way out of whack in terms of damages.

(emphasis added)

Come over to our side of the table and you will see how contentious obtaining justice for legitimately injured people can be. Insurance adjusters, and especially those with the "good neighbor" and "good hands" insurance companies, fight us tooth and nail every way to force us into sueing their insureds, and them, and forcing our clients pay for unneeded and protracted litigation. Perhaps if insurance companies treated claimants with more respect, less litigation would be out of whack in terms of damages.

BTW, "per stirpes" and "by representation" mean approximately the same thing. Good luck with your bar reviews and studying.

 

[legaleagle]

Bobby you are correct sir. When did you start as a paralegal? Nice. Working for a smaller firm or a larger firm?

 

[midlifeflyer]

Mark, do you work for an aviation corp in hours? Don't have to say which one.

No, I don't.

And on the idealism? Don't explain it away. Don't ever lose it. It may be colored by practical experience but the very best lawyers out there still have it.

 

[bobbysamd]

Bobby you are correct sir. When did you start as a paralegal?

Just about ten years ago. I started paralegal school shortly after opting away from aviation. My first full-time job was in an elder law, estate planning, probate, conservatorship and guardianship firm. I worked there about four and a half years. I drew up plenty of wills, trusts and POAs, and worked on many conservatorship and decedent estates during that time. My last five years have been with a four-attorney plaintiffs' PI and claimants' Workers' Comp firm.

 

[bobbysamd]

(continued)

I agree with midlifeflyer's basic tenents on idealism, which is why I hold insurance defense work and general defending of institutional clients in disdain. The average Joe, even if he is a sophisticated Joe, has few weapons at his disposal to get institutions to deal fairly with him. He needs trained advocacy to ensure fair treatment.

Read this article about how at least two well-known auto insurers rely on inhuman computers to value injury claims. This article discusses general bad treatment toward injured parties' claims. You will then understand how unfair these institutional monoliths are to ordinary people and how they are forced into litigating their claims instead of just being dealt with human-to-human.

 

[doh]

bobbysamd and snakum,

Shame on both of you! They did not tell him about the blackmail... er... contract before he got there. He obviously signed that piece of shyte under duress. He needs to call a lawyer so that his credit rating is not affected. Oh, and this just in, no other job insists on a term of indentured servitude as a condition of employment. Slavery is illegal everywhere but in aviation. The kid doesn't need to feel any guilt at all, and sure as he!! don't give 'em no money!

 

[bobbysamd]

Duress and possible adhesion contract

bobbysamd and snakum,

Shame on both of you! They did not tell him about the blackmail... er... contract before he got there. He obviously signed that piece of shyte under duress. He needs to call a lawyer so that his credit rating is not affected. Oh, and this just in, no other job insists on a term of indentured servitude as a condition of employment. Slavery is illegal everywhere but in aviation. The kid doesn't need to feel any guilt at all, and sure as he!! don't give 'em no money!

I caught the duress issue early on in this discussion and addressed it in this post, on June 25, 2004:

I agree. It used to be that a man's/woman's word was his/her bond. On the other hand, not being told beforehand that you would have to sign a contract, pulling up stakes and moving, and arriving only to have a contract sprung on you, under pressure of an impending initial 135 ride, is duress, and one more form of BOHICA pilots endure. For that reason alone and notwithstanding the better opportunity, I don't blame you for leaving the company. It's still only a job and, as stated above, there are other jobs.

There are two wrongs here. The duress of the company pushing the contract under your nose with you facing a 135 ride and you leaving before the contract terms were up. Maybe a lawyer can help negotiate an accord and satisfaction of the contract. Good post by Cynic, above.

The company shoved the contract under the original poster's nose without letting him negotiate the terms. So, another theory could be that the contract he signed was a contract of adhesion:

[font=arial, helvetica, swiss]adhesion contract
n.(contract of adhesion) a contract (often a signed form) so imbalanced in favor of one party over the other that there is a strong implication it was not freely bargained. Example: a rich landlord dealing with a poor tenant who has no choice and must accept all terms of a lease, no matter how restrictive or burdensome, since the tenant cannot afford to move. An adhesion contract can give the little guy the opportunity to claim in court that the contract with the big shot is invalid. This doctrine should be used and applied more often, but the same big guy-little guy inequity may apply in the ability to afford a trial or find and pay a resourceful lawyer.

How about it, legaleagle? Surely, you have read cases on adhesion contracts. I realize there are exceptions to to the doctrine. Assuming we know all the facts, this case is a classic opportunity to provide real advocacy for the little guy.
[/font]

 

[legaleagle]

Bobby,

Perhaps. As I suggested in my first post, duress yes. lack of consderation, yes. Void due to timeliness, yes. Adhesion was one that I was going to write down, but I realized that while it is a contract that has not been bargained for, it must have wide application, and there cannot really be an alternative to the services or product contracted for. Here, he could quit and go elsewhere. Or, if you go to a bank, and there are 400 other banks with similar services, the adhesion argument as to the first bank, would not be a strong argument. It could be pleaded in the alternative, but I think it would get put on the back burner. That;s not to say that it can't be used elsewhere efficiently, but here, it might fall short, unless you add in the element that because of the timeliness, he "constructively" had no other alternative, even though some did exist in one form or another.

CB

 

[bobbysamd]

Adhesion K

It could be pleaded in the alternative, but I think it would get put on the back burner. That;s not to say that it can't be used elsewhere efficiently, but here, it might fall short, unless you add in the element that because of the timeliness, he "constructively" had no other alternative, even though some did exist in one form or another.

I would plead "adhesion contract" as another cause of action besides duress, failure of consideration, and the others. Expecting from Defendant affirmative defenses to include laches, unclean hands (because he left before the K was up) and others.

 

[legaleagle]

Bobby,

I don't know about unclean hands, because he left under the assumption that he was only obligated by the first K. Laches, might not apply either, because his only delay in bringing the action, occurred until the company decided to assert the K. Thus, any delay after that, outside of reasonable time to decide to pursue it from a legal standpoint, would constitute laches.

 

[Canucit]

If you signed the contract you are liable you could of not signed and then if they still offered you the job is one thing

would you have still got the job if you hadn't signed
I say pay up and and good luck

 

[bobbysamd]

Affirmative defenses

I don't know about unclean hands, because he left under the assumption that he was only obligated by the first K.

Here's the fact pattern, as we know it:

I was hired over the telephone to fly charter and freight for an out of state company. I moved to the new state, started working for the company, and just before I took my Part 135 checkride the chief pilot produced a training contract which stated that if I don't stay there a year I have to reimburse the company for training expenses. I signed the contract, found a better job in six months and left the company. The company has since been trying to get the money from me and has sent the bill to a collections agency . . . .

He signed the K but left the company before the K's terms were up. Therefore,

Unclean hands doctrine. Doctrine simply means that in equity, as in law, plaintiff's fault, like defendant's may be relevant to questionof what, if any, remedy plaintiff is entitled to. Principle that one who has unclean hands is not entitled to relief in equity. Black's Law Dictionary (abridged 6th edition), at p. 1058. Defendant could assert that because plaintiff left early and therefore did not fulfill his part of the bargain but is now asking the Court for relief, the unclean hands doctrine applies.

Here again, there are two wrongs. Duress by the company and breach by the guy. Which trumps which?

Laches, might not apply either, because his only delay in bringing the action, occurred until the company decided to assert the K. Thus, any delay after that, outside of reasonable time to decide to pursue it from a legal standpoint, would constitute laches.

I mentioned laches because I've seen laches included in affirmative defenses in many defendants' answers to our complaints. I know they throw it in to reserve their right to assert that defense.

I thought I had off work today?!?

 

[legaleagle]

Bobby,

Just remember every contract dispute starts with a breach, or an anticipated breach. Anyway, think of unclean hands like comparative or contributory negligence in a way. As you said, it reduces the damages of a prospective defendant, if the plaintiff does something wrong as well. But, you must look at the factors that lead up to the alleged disputed item or event. We are not disputing the breach, when the pilot left, that is a breach. We are instead concerned with whether or not it is an excused breach. That is the issue. And, the best argument that his breach is excused, is that the contract was void due to timeliness, duress, etc., and hence void from the beginning. We must look not at possible wrongdoings by the pilot after the K, but leading up to the K. Did he make affirmative representations on his application? i.e. did he misstate his qualifications, that would lead the company to think that he was not going to make it a year? These would be examples of unclean hands, LEADING UP TO the formation of the K, which would be the appropriate measure of the pilot's contribution from an unclean perspective. Otherwise, a breach of a K, if it were unclean hands, would bar everyone's claim that attempts to show that the contract was void, and because of that their breach was excused. Every contract dispute begins with a breach, or an anticipated breach (anticipatory repudiation).

 

[wingnutt]

well, heres a question...

like someone else brought up on the linked thread, isnt a promissory note a different animal? the only contracts ive seen have not been titled as training contracts, but rather the afore mentioned...or is there essentially no difference

 

[midlifeflyer]

well, here's a question...

like someone else brought up on the linked thread, isn't a promissory note a different animal? the only contracts ive seen have not been titled as training contracts, but rather the afore mentioned...or is there essentially no difference

Strictly speaking, a "promissory note" is really just a different type of contract with some special rules.

A "contract" is really just legalese for an agreement between two sides. Sometimes the agreement involves an exchange of promises (you agree to do this and I agree to do that ); other times it involves a promise by one person in exchange for an action by the other (I promise to do this if you do that); other times it's a simply a promise by only one person; still other times is a combination of all of these and a few others. That's why it gets so complicated - the more creative business get in what they want to do, the more creative lawyers have to be when they write it out.

A "promissory note" is really just a contract in which one person agrees to pay the other some money. The simplest is when you take out a loan, the bank gives you the money and you agree to pay it back. If you have a bank loan, read the note. Even if it's a whole bunch of pages long and in very small print, there's very little in there that doesn't refer only to you and what your obligations are. You already got the money. No need for the bank to promise anything - in fact, the bank probably didn't even sign it!

I haven't seen the "Promissory Note" in this case, but I can picture it. They may be trying to make the "repayment" part of the agreement cleaner. Without getting into details that are better saved for Business Law 101, there are ways to write the note so that the right to complain about it later are more limited.

There are both sleazy and very legitimate reasons for doing it this way. You can probably picture some of the sleazy ones. A legitimate example is that, like most businesses, these kinds of operations probably rely on some bank financing. It's pretty common for banks to take a business' accounts and contract rights as part of loan collateral along with things like equipment. From that standpoint, a "account receivable" reflected by a one-sided promissory note without a lot of conditions attached is often more attractive collateral than a contract where there are continuing obligations on both sides.

 

[legaleagle]

Plus, Mark, from your experience, even if they called it a promissory note, you can't contract to pay something that you have already been lent, right? So, the promissory note, has to be given to the employee prior to training. I mean if you give me training (or cash), I accept it, and then after accepting it, you say, "ok, I want you to pay me back", or else, that's no good. So, again, I think on the limited facts, that this all goes back to timeliness.

 

[bobbysamd]

Unclean hands

Just remember every contract dispute starts with a breach, or an anticipated breach. Anyway, think of unclean hands like comparative or contributory negligence in a way. As you said, it reduces the damages of a prospective defendant, if the plaintiff does something wrong as well. But, you must look at the factors that lead up to the alleged disputed item or event. We are not disputing the breach, when the pilot left, that is a breach. We are instead concerned with whether or not it is an excused breach. That is the issue. And, the best argument that his breach is excused, is that the contract was void due to timeliness, duress, etc., and hence void from the beginning. We must look not at possible wrongdoings by the pilot after the K, but leading up to the K. Did he make affirmative representations on his application? i.e. did he misstate his qualifications, that would lead the company to think that he was not going to make it a year? These would be examples of unclean hands, LEADING UP TO the formation of the K, which would be the appropriate measure of the pilot's contribution from an unclean perspective. Otherwise, a breach of a K, if it were unclean hands, would bar everyone's claim that attempts to show that the contract was void, and because of that their breach was excused. Every contract dispute begins with a breach, or an anticipated breach (anticipatory repudiation).

Good explanation.

However, I was viewing unclean hands from Defendant's perspective. I felt that Defendant could raise it as an affirmative defense by arguing that plaintiff breached the contract. Moreover, the axiom, "He who wants equity must do equity" would apply.

Plaintiff might have a case if he at least uses duress and adhesion K as causes of action.

 

[legaleagle]

yes, you are correct on affirmative defense by defendant. Here, the pilot is the defendant, because if he doesn't pay, nor give into the creditors, the school will have to sue to recover the money in a judgment, and the pilot is defending based on duress, timeliness, adhesion, etc. Or, if, rather than waiting for the school to go after him, he sues, than yes, the school would raise the unclean hands defense, i.e. missrepresentation, etc.

 

[midlifeflyer]

Good explanation.

However, I was viewing unclean hands from Defendant's perspective. I felt that Defendant could raise it as an affirmative defense by arguing that plaintiff breached the contract. Moreover, the axiom, "He who wants equity must do equity" would apply.

Only real catch here is that clean hands doesn't apply. I don't really want to get too esoteric here lest we bore =everyone= but ourselves to death, but clean hands doesn't really enter into it. ( If I ever teach business law again, everyone's invited.) "He who wants equity must do equity" is a correct statement, but in only applies to a claim that is based on an equity theory to begin with. But here the company isn't looking for equity. It's looking for money. The simple asnwer to raising an unclean hands defense to a money claim is , "So?""The other guy breached first" can be a defense, but it's not based in "unclean hands."

Bottom line is that none of us know enough about the situation at this point to render an intelligent informed opinion about the merits of the contract, any defense that might be available, the chances of either side winning, or the prospects of settlement. (Actually I wouldn't give an opinion even if I did)Hopefully that's clear to everyone who's still bothering to read this thread.

 

[bobbysamd]

yes, you are correct on affirmative defense by defendant. Here, the pilot is the defendant, because if he doesn't pay, nor give into the creditors, the school will have to sue to recover the money in a judgment, and the pilot is defending based on duress, timeliness, adhesion, etc. Or, if, rather than waiting for the school to go after him, he sues, than yes, the school would raise the unclean hands defense, i.e. missrepresentation, etc.

I was thinking in terms of the pilot being Plaintiff and he suing the company, Defendant, under duress and adhesion theories. Company, as Defendant, could raise unclean hands and breach as at least two affirmative defenses and/or counterclaim against pilot/Plaintiff.