Terminating the Employment Relationship

4. A TTORNEYS ’ F EES There are two types of attorneys’ fees provisions, and agreements often contain both. The first type of attorneys’ fees provision should always be included in an agreement. It provides that the parties’ obligations with respect to attorneys’ fees incurred up to the time the agreement is executed. The following is a sample of the first type of attorneys’ fees provision:

Each party shall bear its/his own costs, expenses and attorneys’ fees (if any) incurred in connection with the proceedings resulting in this AGREEMENT, or in connection with any other claims made or investigated by either party against the other in any forum (civil, criminal, administrative or quasi- administrative), and each of the parties hereto expressly waives any claim for recovery of any such costs, expenses or attorneys’ fees from the other party.

The second type of attorneys’ provision requires a breaching party to pay the other party’s attorneys’ fees in the event the other party has to initiate legal action to enforce the agreement. Without such a clause, if a party breaches the agreement, the other party would pay its own fees in any legal action for breach of the agreement. An attorneys’ fees provision encourages the parties to perform their obligations under the agreement. The following is a sample of the second type of attorneys’ fees provision:

If any dispute shall arise concerning the execution, interpretation, breach, enforcement, or modification of this Agreement and/or if any party shall commence a civil action to resolve that dispute, the Court shall award to the prevailing party, in addition to such other relief as may be appropriate, attorneys' fees and expenses actually incurred in resolving that dispute and any resulting litigation.

There may be circumstances where including an attorneys’ fees provision is unwise. If an employer anticipates potential problems in performing its obligations under the agreement, it may choose not to include the provision.

5. C ONFIDENTIALITY AND D ISCLOSURE Confidentiality clauses prevent one or both parties from releasing information regarding the terms of an agreement. This type of clause can be unilateral (applicable to only one party) or bilateral (applicable to both parties). Employers often desire to include a confidentiality provision in an agreement to avoid the terms being disclosed to other employees, claimants or the public, to the extent possible. It is crucial that a confidentiality clause contain a statement that permits disclosure of the terms when required by law. Without such a statement, a confidentiality clause, and potentially the entire agreement, is unenforceable. The following is a sample unilateral confidentiality clause:

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 107