The following key questions and answers have been prepared to assist healthcare workers outside of the United States of America who may be considering (or who may have already signed) a contract for work in the U.S.
A “contract” is an agreement between two or more persons that creates obligations for each party to do (or not do) certain things. Contracts are also called “agreements” and the two words are often used interchangeably.
Contracts are almost always in writing. A contract is binding on a party the moment the party signs the document. A contract can be signed by a person using an actual pen or by using an electronic signature process, like DocuSign. The parties to a contract do not have to be in the same place when the contract is signed. So, you can be in your home country at the time you sign the contract and the company contracting with you may be in the U.S. at the time they sign the contract.
A “job offer” signed by both is binding and should be reviewed carefully to see what obligations are being created. In some cases, the job offer will refer to a formal “contract” or “agreement” to be signed later. In other cases, the job offer will contain all the terms and conditions between the parties and will constitute a contract.
Contracts have a life span. That life span is call the “term” of the contract. Unless a term is extended, contracts expire at the end of their stated term. Some obligations may continue beyond the end of the stated term and those should be reviewed carefully.
Terminating a contract before the end of its term may be difficult, but not impossible. The contract itself will often include language about whether the contract can be terminated early and under what circumstances that is permitted. Most, if not all, recruiting contracts do not allow a person to end the contract for no reason at all.
In some cases, there may be a valid reason to terminate a contract early. For example, if a party fails to perform its obligations under the contract, the other party may try to terminate the contract early. When a party fails to perform its obligations, it is said to be in “breach” of the contract.
In the U.S., under certain circumstances, the parties to a contract may specify, in advance, the amount of damages one party will pay to the other party when a breach occurs. These types of provisions are called “liquidated damages” provisions. If a contract does not include liquidated damages, then any alleged damages must be proven through a legal process. The legal process can be expensive and the result can be uncertain.
In most cases, yes. However, each situation is different. If the company who signed the contract has not been performing its obligations, or if the liquidated damages are simply too high compared to the harm they suffered, the company may be willing to end the contract early without requiring full payment from you.
In addition to the language of the contract itself, you may have other options to ending a contract based on the law. The key question is “what law applies to your contract?” Most U.S. recruiting contracts will contain language that identifies the law of a particular U.S. state as controlling the contract. However, it may be that the law of your home country will not recognize or follow the law of a U.S. state. It is possible that under the law of your home country some (or all) of the contract may be invalid and not enforceable. This is certainly a specialized area that requires careful attention.
It is always a good idea to ask for advice from a lawyer or someone you know with legal training. They may be able to help you understand the language in your contract and the options available to you. They may also be in the best position to help you negotiate a resolution with the company. In some cases, you may wish to discuss your options with a government agency, like a department of labor, or a diplomatic office, like a consulate.
Each contract will have provisions on how you are to “notify” the other party if you want to communicate with them in a formal manner. It is always best to follow the “notice” provisions as closely as possible when you have a dispute. Putting your position in writing is a good step to trying to get a situation resolved.
Yes. There is nothing to prevent you or your lawyer from asking for a resolution of your dispute, even if that resolution ends up being different from what the contract provides. Of course, the other party always has the option to refuse your request. However, depending on the facts of your situation, the other party may be willing to compromise their position and resolve the dispute on mutually acceptable terms.
Your documents and records are vital to helping you resolve any dispute. All records are important, including, for example, your contract, your communications with the recruiting company, the dates and times you performed your obligations, the activity of the company and the expenses they have incurred. Keep good records. Keep your originals in a safe place and only give out copies, if needed.
Deciding how to handle contract issues can be very difficult. The questions and answers above have been prepared to assist you as you think about these important issues. The discussion above is not legal advice. If you are ever uncertain about your path forward, you should always consider obtaining the advice of a lawyer in your home country.
If you would like some additional information to help you understand job offers and contracts, please visit the YouTube channel for the Alliance for Ethical International Recruitment Practices at https://www.youtube.com/user/AEIRP4theCode/feed.