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Q: Analysis of language in a contract ( Answered 4 out of 5 stars,   2 Comments )
Question  
Subject: Analysis of language in a contract
Category: Miscellaneous
Asked by: grandy65-ga
List Price: $50.00
Posted: 29 May 2006 18:21 PDT
Expires: 28 Jun 2006 18:21 PDT
Question ID: 733485
I need a linguist to tell me what this sentence contained in a contract means:

"Employee further agrees to devote substantially all of his business
time and attention exclusively to the business of Xxxxx."

Specifically whether this precludes any time spent on other business
during normal working hours such as making a telephone call.
Answer  
Subject: Re: Analysis of language in a contract
Answered By: czh-ga on 29 May 2006 20:08 PDT
Rated:4 out of 5 stars
 
Hello grandy65-ga,

The phrase you?ve quoted is what is called ?boilerplate? language
regarding the exclusivity of your services for the company you?re
employed by. It means that under the employment contract you agree not
to work or perform services for any other company. It requires you to
devote all your business-related energies to your employer. Below I?ve
listed some sample contract templates using this language as well as
examples of various employment contracts.

Your concern about ?making a telephone call? is a matter of workplace
or employee policies. These policies may be written down in an
employee handbook or provided to you in some other written form.
Employee policies may also be unwritten. They have to do with the
rules and constraints for your behavior at work. I?ve included some
links about employee policies in general and telephone use policies in
particular.

The contract language you quote regarding devoting ?substantially all
of his business time or attention? refers to outside work. I suggest
that you check your employee handbook or ask your supervisor/manager
about telephone use policies.

Please don?t hesitate to ask for clarification if any of this is confusing.

Wishing you well.

~ czh ~


==================================================
EMPLOYMENT CONTRACTS ? EXCLUSIVITY AND BEST EFFORT
==================================================

http://smallbusiness.findlaw.com/employment-employer/employment-employer-hiring/employment-employer-hiring-contract-provisions.html
Ten Things to Think About: Employment Contract Provisions

Most employment contracts have common elements such as the employee's
start date, salary, and benefits. Other provisions that often appear
in employment contracts are listed here. You can think about what kind
of employment contract is agreeable to you before you sign your next
employment agreement. Your attorney can advise you about the pros and
cons of agreeing to the various provisions or suggest other terms to
include.

4) BEST EFFORTS. Although it is often just assumed that the employee
will work hard for the employer, sometimes employers add a
best-efforts provision to the employment contract. It states that the
employee promises to work to the best of his or her ability and to be
loyal to the employer. Sometimes it also states that the employee
specifically agrees to make suggestions and recommendations to the
employer that will be of benefit to the company.

5) EXCLUSIVE EMPLOYMENT. In this provision, the employee promises that
as long as he or she works for the company the employee will not work
for anyone else in the same or similar type of business. It may also
extend to a promise not to be a shareholder or director in a similar
business, or even to provide services voluntarily to a similar or
competitor business.

-------------------------------------------------


http://www.usdoj.gov/enron/exhibit/03-28-p1/BBC-0001/OCR/EXH024-00272.TXT
ENRON CORP

=============
Page 3 of 21
=============

1.3. Employee shall, during the period of Employee's employment by
Employer, devote Employee's full business time, energy, and best
efforts to the business and affairs of Employer. Employee may not
engage, directly or indirectly, in any other business, investment, or
activity that interferes with Employee's performance of Employee's
duties hereunder, is contrary to the interests of Employer or Enron,
or requires any significant portion of Employee's business time.

-------------------------------------------------


http://www.nanopierce.com/3-31-04%2010QSB.pdf
Exhibit 10.1
EMPLOYMENT AGREEMENT 

(b)
Executive shall devote substantially his entire professional time,
attention and energy exclusively to the business and affairs of the
Corporation and its subsidiaries, as its business and affairs now
exist and as they hereafter may be changed, and shall not during the
term of his employment hereunder be engaged in any other business
activity whether or not such business activity is pursued for gain or
profit. The foregoing shall not be  construed as preventing Executive
from (a) managing his personal investments or investing his assets in
such form or  manner as will not require any significant services on
his part in the operation of the affairs of the businesses or entities
 in which such investments are made, provided Executive shall not
invest in any business competitive with the Corporation and its
affiliates, except those companies whose securities are listed on a
national securities exchange or quoted daily in the Over-the-Counter
Market listing of the The Wall Street Journal; or (B) preclude
Executive from  continuing to serve on the board of directors of any
business corporation or any charitable organization on which he  now
serves and which has been disclosed to the Corporation in writing or,
subject to the prior approval of the Board,  from accepting employment
to additional board of directors, provided that such activities do not
materially interfere with the performance of the Executive?s duties
hereunder.

-------------------------------------------------


http://www.secinfo.com/dsvrp.1Fx.4.htm
EXHIBIT 10.22
EMPLOYMENT AGREEMENT

3. Exclusive Services and Best Efforts. Employee agrees to devote his
best efforts, energies and skill to the discharge of the duties and
responsibilities attributable to his position, and to this end, he
will devote his full time and attention exclusively to the business
and affairs of the Company. Employee also agrees that he shall not
take personal advantage of any business opportunities that arise
during is employment and that may benefit the Company. All material
facts regarding such opportunities must be promptly reported to the
Chairman and Chief Executive Officer for consideration by the Company.

-------------------------------------------------


http://sec.edgar-online.com/2005/02/14/0001144204-05-004711/Section86.asp
EXHIBIT 10.15
EMPLOYMENT AGREEMENT

3. SERVICES TO BE PROVIDED.
3.1. The Employee is currently the President of the Company. The
foregoing sentence notwithstanding the Employee shall serve at the
discretion of the Board and shall perform all duties, obligations and
responsibilities as shall be assigned to him by the Board, and shall
devote his full attention to the performance of the duties,
obligations and responsibilities assigned to him and he will devote
his full time and attention exclusively to the business and affairs of
the Company. The Employee also agrees that he shall act solely for the
Company's benefit in all matters connected with his employment and
further agrees that he shall not take personal advantage of any
business opportunities which arise during his employment and which may
benefit the Company. All material facts regarding such opportunities
must be promptly reported to the Board for consideration.

-------------------------------------------------


http://sec.edgar-online.com/1996/12/16/00/0000950132-96-000794/Section26.asp
EXHIBIT 10.4
AGREEMENT

2.  DUTIES.  Employee, who is employed in the position set forth on
Schedule A hereof as of the date of this Agreement, agrees to be
responsible for such duties as are commensurate with and required by
such position and any other duties as may be assigned to Employee by
Company from time to time.  Employee further agrees to perform his or
her duties in a diligent, trustworthy, loyal, businesslike,
productive, and efficient manner and to use Employee's best efforts to
advance the business and goodwill of Company.  Employee further agrees
to devote all of his or her business time, skill, energy and attention
exclusively to the business of the Company and to comply with all
rules, regulations and procedures of the Company.  During the term of
this Agreement, Employee will not engage in any other business for
Employee's own account or accept any employment from any other
business entity, or render any services, give any advice or serve in a
consulting capacity, whether gratuitously or otherwise, to or for any
other person, firm or corporation, other than as a volunteer for
charitable organizations, without the prior written approval of the
Company.

-----------------------------------------------==


http://www.thecorporatelibrary.com/companies/o/oxy/ceo_oxy.htm
EXHIBIT 10.1
EMPLOYMENT AGREEMENT

3. Services and Exclusivity of Services. During the term of this
Agreement, EMPLOYEE, except as otherwise expressly provided in this
Section 3, shall devote his full business time and energy to the
business affairs and interests of COMPANY and its subsidiaries, and
shall use his best efforts and abilities to promote COMPANY's and its
subsidiaries' interests.

-------------------------------------------------


http://contracts.onecle.com/intertrust/ludvigson.emp.2000.08.04.shtml
Sample Business Contracts

4. Duties and Responsibilities.  Employee shall devote substantially
all his/her business time and attention to the practice of his/her
profession for Company. The expenditure of reasonable time for
teaching, personal or outside business, charitable and professional
activities shall not constitute a breach of this Agreement if such
activities do not materially interfere with Employee's performance of
his/her duties and obligations, as solely determined by Company.
Employee specifically agrees to place his/her duties to Company above
all other activities and will abandon or curtail outside activities if
so directed by Company if in its opinion there exists a conflict or
other reasonable grounds for abandoning or curtailing such activities.


============================
EMPLOYEE POLICIES -- GENERAL
============================

http://wpw.dohertyemployment.com/mar2006/body.cfm
The Employee Handbook:
The Best Resource for Human Resources

Whether your business is large or small, one of the most important
documents that your company should provide to its employees is a
carefully written employee handbook. Written out or not, most
companies already have their own set of policies and procedures.
Creating a handbook is an excellent way of memorializing these
policies, thereby helping employees know that everyone is working from
the same set of rules. There are many benefits to having an employee
handbook: Every employee receives the same information about the rules
of the workplace; employees will know what is expected of them (and
what they can expect from the company); and the company may receive
valuable legal protection in the event of a lawsuit.

-------------------------------------------------


http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2005/07/11/wastingtime.TMP
Wasted Time At Work Costing Companies Billions

For many American workers today, time's a wastin' - literally.
According to a new survey by America Online and Salary.com, the
average worker admits to frittering away 2.09 hours per 8-hour
workday, not including lunch and scheduled break-time. As a matter of
practice, companies assume a certain amount of wasted time when
determining employee pay. However, the America Online / Salary.com
survey indicates that employees are wasting about twice as much time
as their employers expect. Salary.com calculated that employers spend
$759 billion per year on salaries for which real work was expected,
but not actually performed.

-------------------------------------------------


http://www.hrworks-inc.com/art-feb202004.html
Employee handbooks for small firms: How formal must they be?

A well-written employee handbook that's distributed to all employees
is a vital tool for clarifying employee expectations and ensuring
consistency in the workplace. While minimizing legal liability is a
crucial objective, it's only part of the case for developing formal
employment policies.

-------------------------------------------------


http://lawprofessors.typepad.com/laborprof_blog/2006/05/cyberslacking_i.html
Cyberslacking: "It's the New Personal Phone Call"

-------------------------------------------------


http://www.careerbuilder.com/JobSeeker/careerbytes/CBArticle.aspx?articleID=490&cbRecursionCnt=1&cbsid=def7c196ed4a455c9b52f1e02e67d272-202257237-RI-1
10 Ways to Maintain Your Privacy at Work

From monitoring keystrokes to video surveillance to GPS satellite
tracking, today's employers are keeping tabs on their employees.

According to a 2005 survey by the American Management Association
(AMA), U.S. firms continue to record and review employee
communications and activities on the job. This includes checking
employee phone calls, e-mail messages, Internet connections and
computer files.

Most observation takes place because of increased technology available
to employees, such as e-mail and advanced online capabilities.
Seventy-six percent of businesses monitor employee Web use and 55
percent keep and review e-mail messages.

-------------------------------------------------


http://www.crsonline.net/techarticles/tech_column-19.htm
When Employee Use of Technology Gets out of Hand

Do you remember the good old days when employee abuse of company time
and property mainly involved making personal phone calls, sending
personal mail through the mail room and occasionally appropriating
office supplies such as envelopes, paper clips and ball-point pens?
While these petty problems haven't exactly disappeared, the stakes
have gotten higher as incidents of employee abuse of new technology
are being reported at an alarming rate. These include, among other
things, extensive e-mailing for non-company business and perusing the
Internet for pleasure - all on company time.


========================================
EMPLOYEE POLICIES ? PERSONAL PHONE CALLS
========================================

http://64.233.167.104/search?q=cache:7CeI2WC-k88J:www.workinfo.com/Sub/Sub_for_hr/HR/Manual/Section%25204%252014.doc+company+employee+policies+personal+phone+calls&hl=en&gl=us&ct=clnk&cd=9
Policy  : Telephone Usage Policy
Section : Section 4.14
Manual : Human Resources Policies and Procedures Manual
EFFECITIVE DATE:  [Insert Date]
PERTAINS TO:  All Employees
ABC Company provides its employees with telephone access for
company-related business purposes only.  Employees may not use company
telephone systems for personal correspondence, or other personal
activities, such as soliciting for commercial ventures, political or
religious causes, or other outside organizations.

Telephone Monitoring
ABC Company reserves the right to monitor employee phone calls
[Company need to ensure that they have obtained the necessary consent
in terms of the Electronic Communications Act - see Network Policy] on
an as-needed basis for the purpose of training and/or quality control,
or if reasonable suspicion exists of violation of Company rules. 
Employees do not need to be informed in advance as to when phone calls
may be monitored. Such monitoring would include the recording of
telephone numbers dialed by employees.

Disclosure Notice
ABC Company is billed monthly for telephone services, which includes
line charges and toll usage. A statement detailing the calls made from
each telephone is printed monthly and distributed to each user to
determine that the billing is correct and that the telephone calls
relate strictly to official business. The original monthly bill is
retained in the Telecommunications Office per audit requirements.
Calls appearing on billing statements may be reviewed by the Company
and/or department head to assess telephone usage. Therefore, the
privacy of telephone numbers cannot be guaranteed; all numbers dialed
from Company telephones may be printed on the call detail statement.
Per Company policy, telephones in Company offices are to be used for
business only. Personal long distance calls may never be charged to a
Company telephone. To ensure that calls remain private, calls must be
placed from a pay telephone

Excessive use of company telephones for private / personal use may
result in disciplinary action against employees.

Discipline
Employees found violating our telephone policy, are subject to any
form of disciplinary action, that ABC Company feels is necessary.

Deduction
The cost of personal phone calls will be deducted from employee's monthly salary.

-------------------------------------------------


http://das.ohio.gov/hrd/emphandbook/exempt/hdbkexpect.html
State of Ohio Employee Handbook (Exempt)
Workplace Expectations

Personal Calls at Work 

The state recognizes that it may be necessary to make or accept a
limited number of personal phone calls while at work. However, the
frequency and duration of personal calls must be kept to a minimum.
Please refer to your organization?s work rules for more specific
information regarding personal calls at work.

-------------------------------------------------


http://www.uis.edu/directory/personalCallPolicy.html
University Policy on Personal Phone Calls 

University employees may use University telephones solely for
conducting University business or other authorized uses as defined in
this policy.

Guidelines for Other Authorized Uses
Within these guidelines, other authorized uses of University
telephones are calls that:

1. Do not adversely affect the University or the employee's
performance of his/her official duties.

2. Are of a reasonable duration and frequency, in accordance with the
examples listed under "Examples of Other Authorized Uses" in this
section.

3. Could not have reasonably been made during non-work hours, in
accordance with the examples listed under "Examples of Other
Authorized Uses" in this section.

-------------------------------------------------


http://www.navref.org/bestpractices/hr_employment_other.htm
OTHER POLICIES OF INTEREST

Other policies that an NPC may want to include in an employee handbook
that are not discussed elsewhere on this website:

 -- Phone calls, voice-mail and regular mail - Professional appearance
is important in the conduct of business. NPCs may wish to promote
professionalism by establishing policies regarding with regard to
phone calls, voice-mail and official correspondence.

 -- Personal calls - A personal phone calls policy should stress that
business related calls are priority. Personal calls should be made
during lunch or break periods and otherwise limited to emergency calls
only.

-------------------------------------------------


http://www.harnett.org/downloads/cellphonepolicy.pdf
County of Harnett Cellular Phone Policy

-------------------------------------------------


http://www.sgcpa.com/qt_callphone%20use.php
Employee Cell Phone Use While Driving - What Is Your Liability?

Although a purely personal call is not "within the scope of
employment", any accident while driving the company vehicle or any
accident that is caused while using company provided equipment (cell
phone, tape recorder, screen) might be sufficient for liability.
Although some legal experts deem personal calls "outside the scope of
employment", others (including a jury) might dispute that. Injured
parties are increasingly suing the employer in cases where an
employee's accident is due to inattention caused by the use of a cell
phone so consider including personal phone calls when developing your
cell phone policy.

-------------------------------------------------


http://72.14.203.104/search?q=cache:YLOsQ-gBQCMJ:cobrands.business.findlaw.com/employment_employer/nolo/ency/751CFB9F-5A4B-48FB-A85BC08E2D9862E5.html+employee+policies+personal+phone+calls&hl=en&gl=us&ct=clnk&cd=15
Phone Calls

Employers may monitor employee conversations with clients or customers
for quality control. Some states require employers to inform the
parties to the call -- either by announcement or by signal (such as a
beeping noise during the call) -- that someone is listening in.
However, federal law allows employers to monitor work calls
unannounced.

An exception is made for personal calls. Under federal law, once an
employer realizes that a call is personal, the employer must
immediately stop monitoring the call. However, if an employee has been
warned not to make personal calls from particular phones, an employer
might have more monitoring leeway.


===============
SEARCH STRATEGY
===============

Employee further agrees to devote substantially all of his business
time and attention exclusively to the business of

employee policies personal phone calls
employment contracts Exclusive Services and Best Efforts

Clarification of Answer by czh-ga on 30 May 2006 08:38 PDT
Hello again grandy65,

I?m sorry that as a first time user of Google Answers you didn?t
realize you could ask for clarification of your question until you
were fully satisfied before rating it. I suggest you review these
links so that next time you will be completely happy with the search
results.

http://answers.google.com/answers/faq.html#furtherclarification
http://answers.google.com/answers/help.html


The term ?substantially all? or ?all, or substantially all? is used in
many types of contracts, including employment contracts. The phrase
has specific meaning depending on the jurisdiction / location /
organization of the parties involved in the contract. Below I?ve
collected some samples to help you get an overview. In these examples
?substantially all? means any of the following: 85 per cent, 90 per
cent, ?no material part,? and all in specific categories. I suggest
that you contact a lawyer if you need more precise information about
the specific contract you?re interested in.

I look forward to your future questions on Google Answers.

All the best.

~ czh ~


http://www.cra-arc.gc.ca/E/pub/gl/p-023/p-023-e.htm
P-023 Interpretation of "all or substantially all"

Does the phrase "all or substantially all" mean 100% for financial
institutions or does it have the same meaning as for other
registrants, i.e. generally 90% or more?

===

http://workforcesecurity.doleta.gov/dmstree/handbooks/301/guide_sheet_9.htm
PROFESSIONAL ATHLETES BETWEEN SEASONS

B. WERE SUBSTANTIALLY ALL (90% or as defined by State law) OF THE
CLAIMANT'S SERVICES PERFORMED DURING THE BASE PERIOD IN A PROFESSIONAL
SPORT?

===

http://a257.g.akamaitech.net/7/257/2422/01apr20051500/edocket.access.gpo.gov/cfr_2005/aprqtr/26cfr1.72(e)-1T.htm
TITLE 26--INTERNAL REVENUE
CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 

Q-3: What is the definition of a qualified plan or contract under
which substantially all of the contributions are employee
contributions?

A-3: (a) A qualified plan or contract under which substantially all of
the contributions are employee contributions is a plan or contract
with respect to which 85 percent or more of the total contributions
during the ``representative period'' are employee contributions.

===

http://www.ssa.gov/OP_Home/rulings/di/05/SSR83-09-di-05.html
SSR 83-9: TITLE II: WHAT CONSTITUTES "SUBSTANTIALLY ALL" STATE OR
LOCAL COVERED EMPLOYMENT FOR PURPOSES OF EXCLUDING OFFSET (AGAINST
DISABILITY BENEFITS)

POLICY STATEMENT: In the absence of more definitive guidance from the
Congress, it is reasonable to consider the "substantially all"
requirement to be satisfied when 85 percent of the employment in
question was covered by an agreement entered into pursuant to section
218 of the Social Security Act. This policy is justified by the
following rationale:

===

http://www.twc.state.tx.us/ui/tax/manuals/law/law_ch2_01.html
2.1.8     Service of Driver or Salesman

The term ?employment contract? as used in Sections 201.042(1)(B) and
201.042(2)(A), means an arrangement, formal or informal, under which
the particular services are performed. The requirement that
substantially all of such services are to be performed personally
means that no material part of the services will be delegated to any
other person by the individual who undertakes under the contract to
perform such services.

===

http://www.state.wv.us/wvsca/docs/Spring05/31858.htm
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

2. The phrase ?substantially all? in W.Va. Code  23-2-14(b) (2003),
regarding the determination of successor liability under the Workers'
Compensation Act, means all but an insignificant amount.

===

http://www.stfm.org/legislat/GME/GMEVolunteerSupervisionIssues.pdf
GME Volunteer Supervision Issues

Definitions/All or Substantially All:
The statute does not define ?all or substantially all?; CMS does. In
fact it has changed its definition over time. There is no reason that
CMS cannot define ?all or substantially all? as ?the residents?
stipends and benefits and other costs, if any, as determined by the
parties.?

===

http://www.healthassistancepartnership.org/medicare/resource-center/faq-resource-center/formulary-answers.html
Questions about Plan Formularies

4.  When referring to the statement about Part D plans offering access
to ?all or substantially all? drugs in the six defined classes ? who
defines ?substantially??

CMS released Clarification to the Formulary Guidance which established
a definition for the expression, ?all or substantially all? means that
all drugs in these categories are expected to be included in plan
formularies. There are a few specific exceptions:
grandy65-ga rated this answer:4 out of 5 stars
Legal answer but was looking for clarification on the word
'substantially' as a modifier to 'all'

Comments  
Subject: Re: Analysis of language in a contract
From: sonoritygenius-ga on 29 May 2006 18:29 PDT
 
Well.. break it down it says

Employee agrees to devote
"all"
"substantially"
"time and attention"
"EXCLUSIVELY***" 

...this means you cannot do ANY business with any other business!!
Subject: Re: Analysis of language in a contract
From: nelson-ga on 29 May 2006 18:42 PDT
 
"Substantially" actually reduces the impact of "all".  It means
"mostly".  See definition 5 here:
http://www.m-w.com/dictionary/substantially.

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