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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.)

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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 at 3:19
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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? Aug 14 at 11:00
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    What if she decides to leave before her term is over? Aug 15 at 1:08
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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. Aug 15 at 15:57
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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. Aug 15 at 16:53

2 Answers 2

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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.

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    The 13th Amendment in particular bans this kind of clause in the contract.
    – user8913
    Aug 15 at 14:40
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    @Panzercrisis Precisely.
    – Michael
    Aug 15 at 17:14
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    @BarneyCowell FYI whether that clause is part of a contract for employment or part of the employee handbook does not change the answer in this case.
    – Michael
    Aug 15 at 21:03
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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.

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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 at 18:22
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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 at 19:57
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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. Aug 13 at 20:21
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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 at 20:45
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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 at 23:52

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