In Rahman v. Cannon Design Architecture Ltd., the court upheld a termination provision by distinguishing appellate court authority which would otherwise have bound the Court to void the provision for denying ESA minimum payments entitling Ms. Rahman to common-law notice. With respect to the Court, this was unnecessary. The Court was particularly concerned that employers could seek to void generous executive departure compensation by inserting unenforceable language into the form of agreement. This “peril” was previously addressed in Felice v. Cardinal Health. Contrary to the Court’s assertion in Rahman that “…there are no winners in such a world”, Felice was awarded a generous common-law notice period that was comparable to the provision his employer successfully argued was void. The problem with Rahman is that it adds uncertainty as to whether such provisions are consistently unenforceable and compounds this undesirable uncertainty by relying on facts such as whether the employee had counsel when such advice is privileged, not discoverable, and most executive contracts will contain entire agreement provisions excluding consideration of earlier drafts and representations in the formation of the agreement.
This one should be appealed and quickly. Very few employees have the financial ability to advance litigation overcoming the procedural hurdles and motions that will arise as a direct result of this decision.