[lawstudent2]

I'm a practicing corporate lawyer - i just have the same sn on reddit as on here.

And yeah, I did read the case, and you are wrong. A contract between an employer and employee is not an employment agreement - in this case, it was an NDA. Your quote literally contradicts what you are saying:

"it is not logical for a court to treat differently a covenant presented on the first day of work and one presented one week after the first day in the at-will employment setting. "

At will = not an employment agreement. You can - and often, do - sign NDAs, in addition to a whole bunch of other paperwork, on the first day of your job as an at will employee.

Let's put it another way: having an employment agreement is the opposite of being an at-will employee. One cannot be both. Having an at-will employment agreement, recognized in a contract, is still not an employment agreement - an employment agreement specifies a fixed term of employment.

Can't make it any clearer than that.

For the record, I'm a practicing corporate and IP attorney. I handle a lot of employment stuff as well - it comes with the territory.

[DannyBee]

". A contract between an employer and employee is not an employment agreement"

It seems you are limiting the term "employment agreement" to cover fixed-term employment contracts and what they entail. As a practicing corporate and IP attorney (which I am as well), you should pretty well know nobody uses it that way, not even courts. There are such things as at-will employment agreements. You are correct that non-fixed duration employment contracts are generally at-will, but that does not make them any less of employment agreements. If you do not believe you can make an at-will employment agreement, i don't know what to even tell you. Would you like me to cite 50 cases that disagree with you? :)

All employment is by contract, and all these contracts are employment agreements, whether they are implied contracts (which is what most at-will employment is, for sure), collective bargaining agreements, explicit negotiated agreements, or whatever. I can make a verbal at-will agreement too! It's still an employment agreement.

It is true that, in for example, california, labor code specifies at-will employment as the default employment relationship without a contract, but that does not mean if you have a written contract you cannot be at-will, or you cannot have an employment agreement (most of the written employment agreements that are at-will make you explicitly agree you are at will and cover a salary. These are very clearly employment agreements, as they cover your employment status and terms of your employment, etc). It also doesn't mean a verbal agreement wouldn't overcome that default.

But I guess if we fundamentally disagree on terminology, we aren't getting to space today.

[dctoedt]

Another corporate and IP attorney here. DannyBee's view is held by many, many attorneys, me included.

(Nit & rant on DannyBee's comment: In the legal context, I wish people would stop using the colloquialism verbal agreement as if it meant only oral agreements and excluded written agreements. The primary meaning of the word verbal is "of, relating to, or consisting of words," from the Latin verbum, word [1]. A non-verbal agreement might be one that is reached, e.g., by sign language; by raised eyebrows and nodded heads, as long-time married couples sometimes do; or by other gestures.)

[1] http://www.merriam-webster.com/dictionary/verbal

[lawstudent2]

I follow - in my practice, when dealing with the phrase "employment agreement" it almost always refers to an agreement with a fixed or minimum term of employment.

This is all beside the point. The central point is that an at-will employment agreement, reduced to writing or otherwise (NB: in NY State, it is explicitly the case that a contract regarding employment must be in writing if it is of an indefinite term, else it violates our statute of frauds - this has been dealt with affirmatively by the court of appeals) is definitionally terminable for any reason or no reason, at any time, without notice. In this regard, it is a type of adhesion agreement, and acceptance of each payment of consideration acts as a renewal of the agreement. As a result, its terms may be changed, at any time, by either party, where payment and acceptance of consideration acts as ratification of those terms, so long as the terms are not explicitly illegal.

This was my point. And that is the way this decision came out. It is 100% unproblematic.

Feel free to debate the semantics of whether an "employment agreement" means any contract relating to employment (is an NDA an employment agreement? What about an offer letter?) or if it can also mean a fixed or minimum term agreement (NB2: I've been involved in many labor disputes and maybe the use of "employment agreement" is dealt with as conceptually separate from "at will employment" more frequently by labor lawyers - I know that the labor lawyers I have worked with don't seem to use the two phrases interchangeably). It is not what I was arguing at all. And DannyBee got it wrong, explicitly. The judge explicitly limited the discussion to at-will employment.

To put it another way: this decision should only be surprising to someone who doesn't know about at-will employment or standard american employment practices. Having overseen the contentious separation of a dozen high level executives at my various clients, and having overseen the "employment agreements" (both at will and for fixed terms, just to be clear) for many, many dozens more, I can assure you, this decision, even if it were issued in New York, doesn't change my practice one iota.