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My teenager has applied for a tutoring job at a local after-school tutoring center and there is the following clause in her employment contract:

If you decide to discontinue after your term is over, you need to provide a referral and train him or her before you leave.

Has anyone ever seen an employment clause like this before? Is it even legal? We live in the state of California.

Edit (P.S.: Actually, I may have been incorrect in stating that this requirement was part of an "employment contract" since there is no place for the prospective employee to sign and date their acceptance of all of the clauses at the bottom of the page. My daughter says that the clauses are actually stated to be "rules" for employees.)

Barney Cowell
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    I wonder if they're modelling this contract on a contract for counselors or therapists, who have an ethical obligation to provide referrals to patients when they terminate employment (or terminate therapy). – Joe Aug 14 '22 at 03:19
  • Questions: 1) is it really an employment contract? In my experience tutoring services usually make their tutors become subcontractors. 2) Are the terms "referral" and "train" defined anywhere in the contract or in any linked/referred documents? 3) Are any penalties spelled out (anywhere in the documents) for failure to comply/fulfill the requirements? ... Lacking these last two, I seriously question it's enforceability on any practical level. – RBarryYoung Aug 14 '22 at 10:52
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    Also: 4) if it is really an employment contract then what will be your teenager's employment status: salaried, hourly FT, or hourly PT? 5) By "teenager" do you mean 18+ or less than 18yo? – RBarryYoung Aug 14 '22 at 11:00
  • As written it seems to imply that this contract is for a specific term with renewals expected and that you can't terminate the "subscription" without the referral! And, too, training after the last agreed to term is over. Can that possibly be right? – davidbak Aug 14 '22 at 22:17
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    What if she decides to leave before her term is over? – Acccumulation Aug 15 '22 at 01:08
  • @RBarryYoung Questions on the classification (statutory or otherwise) of the daughter's employment and about her age are beyond the scope of the OP's question. The absence of definitions of "referral" and "training" in the contract does not bar its enforceability, since their commonplace meaning would be adopted. Nor is an outline of penalties a requisite for enforcement. Actual damages are actionable regardless. The only difference is that spelling out the penalties would make it easier for a court to either quantify an award (if any) or adjust them down to a non-punitive character. – Iñaki Viggers Aug 15 '22 at 12:04
  • @davidbak "And, too, training after the last agreed to term is over." The clause nowhere provides that training ought to happen after that. Nothing in the clause impedes the OP's daughter to coordinate with the employer before her last term (as per her decision not to work there one more term) is over. "Can that possibly be right?" Yes. Automated renewals are common in contracts, including employment ones. – Iñaki Viggers Aug 15 '22 at 12:05
  • @IñakiViggers Sorry, I do not agree about the definitions. First there is no common meaning of the term "referrals" in US contracts, I've seen maybe half-a dozen different meanings in my career. Lacking explicitness, she should be able to just pick a anyone she thinks might be interested and call it a "referral". As for training, without explicit scoping and focus it's effectively meaningless. I've seen "training" in a contract mean anything from 9 months of classroom study, to five minutes of explaining how the phones work. I'd call both of these "practically unenforceable". – RBarryYoung Aug 15 '22 at 14:55
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    @RBarryYoung - Actually, I may have been incorrect in stating that this requirement was part of an "employment contract" since there is no place for the prospective employee to sign and date their acceptance of the terms at the bottom of the page. My daughter says that the clauses are actually stated to be "rules" for employees. – Barney Cowell Aug 15 '22 at 15:57
  • @RBarryYoung - Also, as for your questions (2) and (3), no, the terms "referral" and "train" are not defined anywhere in documents and no penalties are spelled out for failure to comply/fulfill the requirements. It doesn't have the appearance of having been drawn up or reviewed by a professional lawyer. – Barney Cowell Aug 15 '22 at 16:10
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    @RBarryYoung "there is no common meaning of the term "referrals" in US contracts". There is no need for that. See Consumer Advocacy Group, Inc. v. Exxon Mobil Corp.*, 128 Cal.Rptr.2d 454,458 (2002) ("To determine the common meaning, a court typically looks to dictionaries"). Contract disputes are not dismissed merely because the contract does not provide its own definitions. Instead, a court would assess the language and context to "grant the relief on such terms as justice requires". Restatement (Second) of Contracts at §272. – Iñaki Viggers Aug 15 '22 at 16:53
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    @BarneyCowell "the clauses are actually stated to be "rules" for employees." If the employer is able to prove that your daughter kept working there despite her awareness of those rules, they are as binding as if she signed a contract listing them. – Iñaki Viggers Aug 15 '22 at 16:56
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    FWIW, in the area of professional theatre, I've occasionally had language slipped into contracts stating that, should I leave under certain conditions, there are fines involved if a replacement cannot be found. I've routinely crossed them out and then signed the amendment before signing, but I get where they're going with it in that it can be expensive to replace an actor a week before the performance. – SCD Aug 15 '22 at 20:39
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    @IñakiViggers "...they are as binding as if she signed a contract listing them." - I guess that brings up another issue. My daughter is 16 and therefore a minor. My understanding was that minors cannot make or sign legally binding contracts. FYI, I, the parent, was not asked to sign the contract. – Barney Cowell Aug 15 '22 at 20:45
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    @BarneyCowell on that final note, you might find this answer interesting. – Michael Aug 15 '22 at 21:07
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    @BarneyCowell "My daughter is 16 and therefore a minor. My understanding was that minors cannot make or sign legally binding contracts." Minors certainly can enter contracts except as outlined in CA Family Code at §6701. But as long as your daughter is younger than 18 y.o., §6710 entitles her to disaffirm/void the contract unless the particulars of the contract satisfy the conditions in §6712. I presume that §6712 is inapplicable here, but I mention it to be safe. – Iñaki Viggers Aug 15 '22 at 22:58

2 Answers2

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Contracts can say all sorts of unenforceable things, you provided an example of one of them. A person cannot be compelled to stay and work somewhere they no longer wish to work.

At the risk of getting my wrist slapped for straying too far into the land of opinion, a clause like this is likely intended to take advantage of naive teenagers who will provide free employment referrals because they think they have to.

Michael
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Has anyone ever seen an employment clause like this before? Is it even legal?

The clause is lawful. However, its enforceability can be forfeited unless (1) the employer commits to hire whoever your daughter's referral is, or (2) the contract outlines clearly enough how to proceed in the event that the proposed replacement is unacceptable to the employer.

The clause is not to be construed as suppressing your daughter's statutory right to terminate at will her employment (CA Labor Code §2922) or to perform training for free. Instead, the clause essentially requires your daughter to plan ahead so that the employer has a replacement by the time her resignation becomes effective (hence the contract language "before you leave").

The employer's rejection of the referral would forfeit its entitlement insofar as it hinders the transition your daughter is or will be planning for the company. To preclude forfeiture in this scenario, the employer would have the difficult task of proving that --in doing the referral and/or training-- your daughter violated the covenant of good faith and fair dealing that is implied in every contract.

In the alternative, the contract would need to include language that reasonably informs your daughter about the constraints applicable to the referral & training process. The constraints themselves have to be reasonable. For instance, your daughter cannot be asked to provide a referral whose experience or qualifications exceed your daughter's.

Lastly, neither the lawfulness of a clause nor its enforceability precludes your daughter's freedom to propose or require different terms in the contract. In some contexts, negotiations are easier before signing a contract whereas in others an amendment is more practical.

Iñaki Viggers
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    Just to be clear, by stating that the clause is lawful, are you saying that the contract can legally force the OP's daughter to name a person (the "referral") to take over her responsibilities before she is permitted to leave? What if she can't find anyone willing to take the job but still wants to leave? Frankly, I don't see how any legal employment contract can place the burden of finding a replacement on the leaving employee's shoulders. That sounds like it would violate the spirit of being able to leave "at-will". – Deepak Aug 13 '22 at 18:22
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    @Deepak "the contract can legally force the OP's daughter to name a person (the "referral")". Yes. The daughter knowingly and willfully commits to that by signing the contract. "What if she can't find anyone willing to take the job" That is not her duty. The clause specifically requires her to [in good faith] "provide a referral", which is different from persuading the referral to take the job. "like it would violate the spirit of being able to leave "at-will"." It does not. The clause only requires the daughter to cooperate as to certain preparations and anticipate accordingly. – Iñaki Viggers Aug 13 '22 at 19:35
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    That clause is unenforceable for so many reasons, and any later clause that requires consideration on her part for not fulfilling this clause is probably an enforceable too. Ex: Unless they're going to pay her for the time she spends locating a referral, the whole thing is unenforceable (and potentially wage theft). – Michael Aug 13 '22 at 19:57
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    I think your use of the word "requires" in the second paragraph is too strong. As you say in the sentence previous, the clause does not require her to do anything; it suggests that there may be penalties if she does not do a thing (but we have no idea if pentalties exist or if they're constructed in a way that could be enforceable). – Michael Aug 13 '22 at 20:06
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    @Michael "the whole thing is unenforceable (and potentially wage theft)." The clause nowhere indicates that the OP's daughter shall perform the replacement tasks for free. It is not uncommon to give an n-day notice and spend that time on the transition. Your remark about "requires" seems inconsistent with your next statement, but the answer (2nd sentence of the 2nd paragraph) explains what the contract requires her to do. "it suggests that there may be penalties if she does not do a thing". There is no information on the issue of penalties at all, and therefore I did not address it. – Iñaki Viggers Aug 13 '22 at 20:21
  • This might be more so a disagreement about the legal definition of the word require than of the actual effect of the clause. – Michael Aug 13 '22 at 20:26
  • @Michael "This might be more so a disagreement about the legal definition of the word require". The Black's Law Dict. definition of require is unequivocal and leaves no room for conflicting interpretations. All contracts require the parties to comply with a set of duties and in exchange entitles them to a set of rights. "than of the actual effect of the clause." It is up to the employer whether to pursue an actual effect of the clause, but it is a mistake to presume that the clause is downright unenforceable. – Iñaki Viggers Aug 13 '22 at 20:36
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    Then we do agree. What is your legal argument that work can be compelled as a condition of termination, and what is the basis for this requirement superceding an employee's protection against compulsory labor under the 13th amendment? – Michael Aug 13 '22 at 20:45
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    @Michael Bringing up the 13th amendment is quite a stretch in an employment relation where work, payment, and labor conditions are knowingly and wilfully agreed by the parties. Your extrapolation would mistakenly imply that all requirements to give a 2-week notice are unlawful, a conclusion that is at odds with a multitude of court opinions regarding employment disputes. Let us continue this discussion in chat. – Iñaki Viggers Aug 13 '22 at 20:53
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    You mention at will, but then you say the clause is enforceable. I don’t understand how both can be true. The employee should be able to terminate at any time for any reason. To me that directly contradicts your assertions about preparation and anticipation. If I have to act in preparation and/or anticipation of terminating my employment, then I can’t also terminate at any time. I can only actually terminate some amount of time after I have first decided to terminate and then made the preparation demanded by the clause. – Todd Wilcox Aug 14 '22 at 13:44
  • @ToddWilcox "I don’t understand how both can be true." Employment at will does not preclude a requirement of giving an n-day notice of resignation. In Oomrigar v. Tibco Software, Inc. (CA Court of Appeals, May 2022), the first paragraph that mentions "at will" illustrates that at will employment is perfectly compatible with requiring a one month's notice. Here, the daughter's clause is not in terms of days, but in terms of the parties' intended outcome: namely, to facilitate the transition & replacement. – Iñaki Viggers Aug 14 '22 at 14:21
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    Hmm. Oomrigar seem inapposite. The aspects about termination notice concern the employer's obligation to give notice in order to terminate without cause (as set out in an employment contract), not an obligation on the employee to give notice in advance of quitting. – John Bollinger Aug 14 '22 at 20:26
  • @JohnBollinger "not an obligation on the employee to give notice in advance of quitting." The notice requirement applies to both parties. Oomrigar reproduces the clause "this Agreement may be terminated by you or by [TIBCO] upon giving one (1) months' written notice". Clauses of that type are not at odds with employment at will. – Iñaki Viggers Aug 14 '22 at 21:16
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    However, the enforcement of that clause (where legal) can only be limited to reasonable actions, -- providing references, payout of leave equivalent to notice, recovery of reasonable excess payments over agreed salary, and even then only with a reasonable debt recovery process. Refusal to work to agreement is a firing offence, not a wage-recovery excuse. – david Aug 14 '22 at 23:52
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    @david Indeed. Hence my initial remark that enforceability can be easily forfeited. Many people's interpretation of the clause stretch what it actually provides. In doing so, they miss key elements of legal doctrines and the lawful consequences of the refusal you point out. – Iñaki Viggers Aug 15 '22 at 08:44
  • Can you explain how the two tasks are legally connected? Employee needs to a) provide a referral and b) train them. The way the sentence is phrased clearly implies that the training is for the specific person in the referral and not for whoever the employer chooses to hire as replacement. I could interpret this in at least 2 very different ways. 1 the referral is only a referral if the person is actually hired so they can be trained. 2 the training obligation only applies if the replacement is the referral. 3 neither? why? – quarague Aug 15 '22 at 09:20
  • @quarague "how the two tasks are legally connected?" Good question. It is reasonable to infer that the parties' intent is to streamline the transition from the employee's quitting. But strictly speaking, the terms of the clause allow the employee to stick to option 2 since it purports to equate "referral" with the receiver of training. One drawback of employee's intransigence to train the replacement only if he or she is the employee's referral is that it tends to help the employer prove a breach of the covenant of good faith (i.e., by of recommending someone who "foreseeably" was a no-go). – Iñaki Viggers Aug 15 '22 at 11:15