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Most Utah employees treat an employment agreement the same way they treat the terms of service on a software update: scroll, scroll, agree. The HR rep slides the packet across the table, points to the signature line, and within a few minutes, the deal is done.
The cost of that habit shows up months or years later. A clause buried on page eleven dictates whether your bonus survives a layoff. A definition you never read decides whether your equity walks out the door with you. A two-sentence provision restricts which competitors you can work for after the relationship ends, even though you negotiated none of it.
Employment agreements are drafted by the employer's legal counsel for the employer's benefit. That is not a moral failing; it is how the system works. The problem is that most employees never push back, never ask for revisions, and never recognize the specific clauses that create real risk. This guide identifies seven of the most common hidden traps in Utah employment agreements: what they look like, why they matter, and how a candidate or current employee can push back without torpedoing the relationship.
Most professional offers include a bonus component, and most candidates focus on the size of that bonus rather than the language defining it. The word to flag is "discretionary."
When a bonus is described as discretionary, the employer retains the right to pay any amount—including zero—regardless of the company's performance, your individual performance, or what was discussed during the recruiting process. The verbal promises about "target bonus" or "typical payout" carry no weight against a written agreement that gives the employer unilateral discretion.
What to push for: a formulaic bonus structure tied to objective metrics. Revenue thresholds, department-level results, individual performance scores tied to a defined rating scale—anything that ties the payout to verifiable inputs rather than the unreviewable judgment of a manager. If the employer insists on retaining some discretion, push for a defined target amount and a floor (such as 50 percent of target) that protects you from arbitrary reduction.
Also flag: the "employed on the payment date" requirement. Many bonus plans require the employee to be on payroll the day bonuses are distributed—often months after the performance period closed. Get terminated two weeks before that date and your earned bonus disappears. Negotiate language tying eligibility to the performance period, with pro-rata treatment for partial years.
Mandatory arbitration clauses have become routine in Utah employment agreements. They typically require any dispute—wage claims, discrimination claims, contract disputes—be resolved through private arbitration rather than in court. The clause sounds neutral. It is not.
Arbitration favors employers in measurable ways. Awards tend to be smaller. The arbitrator is selected from a pool the employer may have used before. There is no jury. Discovery is limited. Appeals are nearly impossible. And in many cases, employees waive the right to participate in class or collective actions, meaning a wage-and-hour violation affecting hundreds of employees has to be litigated one arbitration at a time.
What to push for: if the employer will not strike the arbitration clause entirely (and most will not), at minimum negotiate carve-outs. Statutory claims that cannot be waived under federal law should be explicitly preserved. Sexual harassment and sexual assault claims are protected under federal law and Utah Code § 34A-5-114, and the agreement should explicitly preserve the right to bring those claims in court. Push for the employer to pay the costs of arbitration (filings fees, arbitrator fees) so that financial pressure does not deter you from asserting valid claims.
Also confirm the arbitration is governed by neutral rules (AAA or JAMS employment rules) rather than rules the employer can modify unilaterally.
Most employment agreements include an inventions assignment clause requiring the employee to assign all intellectual property created during the employment to the employer. That is reasonable for inventions related to the job. It becomes unreasonable when the clause sweeps in everything you create, including projects developed on your own time, with your own resources, unrelated to the employer's business.
A poorly drafted clause can give the employer ownership of the side business you started two years before you joined the company, the open-source project you contribute to on weekends, the novel you write in the evenings. Even if the employer would never actually claim ownership, the existence of the clause creates uncertainty that may scare off future investors, acquirers, or publishers.
What to push for: a clear exclusion for prior inventions and a written schedule listing existing projects. Add language carving out work created on your own time, without company resources, that does not relate to the employer's business or anticipated business. Some states require this exclusion by statute; Utah does not, which makes negotiating it that much more important.
Document everything you bring in. A list of pre-existing inventions attached as an exhibit to the agreement is the single most effective way to prevent later disputes over ownership.
If your agreement includes severance, equity, or any post-termination benefit, the definition of "cause" determines whether you actually receive it. A broad definition can transform an ordinary termination into a for-cause termination, and a for-cause termination usually means no severance, accelerated forfeiture of unvested equity, and sometimes clawback of equity already exercised.
Watch for cause definitions that include vague catch-all language: "conduct detrimental to the company," "failure to perform duties to the company's satisfaction," "loss of confidence by the board." Each of these gives the employer almost unlimited discretion to recharacterize a termination.
What to push for: a narrow, specific, objective definition. Cause should require actual material misconduct: fraud, embezzlement, conviction of a felony, willful and material breach of a specific written policy. Performance issues should require documented warnings and a reasonable opportunity to cure. The determination should require notice in writing and, ideally, review by an objective decision-maker rather than the manager who is firing you.
We cover the mechanics of cause definitions in more detail in our guide to what to negotiate in employment contracts before signing, but the principle is straightforward: the narrower the definition, the less risk you carry.
Non-compete, non-solicitation, and customer non-solicitation clauses are some of the most frequently overreached provisions in Utah employment agreements. They are also some of the most negotiable.
Utah's Post-Employment Restrictions Act caps post-employment non-competes at one year. Yet many Utah employment agreements still include eighteen-month or two-year restrictions. Some define "competing services" so broadly that the restriction would effectively bar the employee from working in any related role anywhere in the country. These provisions are often unenforceable, but unenforceable provisions still create real friction. Future employers may hesitate to hire you. You may avoid roles you could legally take. And if your former employer files suit to enforce the restriction, defending yourself is expensive even when you ultimately win.
What to push for: restrictions limited in duration (six months is achievable for many roles), geography (only the area where you actually worked or had material customer contact), and activity scope (specific competing services, not the entire industry). For non-solicitation, push to limit the clause to clients you personally serviced rather than the employer's entire customer base. Watch for "prospective client" language that extends restrictions to people you never interacted with.
We have written extensively about what is actually enforceable under Utah non-compete law. Reviewing that framework before signing will help you identify which restrictions are negotiable away entirely and which are simply overbroad.
Confidentiality clauses are standard. The problem is when they are drafted so broadly that they purport to restrict disclosures the law protects.
Under Utah Code § 34A-5-114, employees cannot be required to maintain confidentiality regarding sexual harassment or sexual assault claims. Federal law similarly protects certain whistleblower disclosures, communications with the EEOC, and reports of suspected illegal activity to government agencies. A confidentiality clause that does not explicitly carve out these statutory protections creates the impression that the employee has waived these rights.
Other common overreach: confidentiality clauses that define "confidential information" to include general industry knowledge, public information, or information you brought with you from a prior employer. Read that way, the clause prevents you from ever using your professional expertise again.
What to push for: explicit carve-outs for disclosures required by subpoena or legal process, disclosures protected under federal whistleblower statutes, disclosures of sexual harassment or sexual assault claims under Utah Code § 34A-5-114, and disclosures permitted under the federal Defend Trade Secrets Act (which protects certain disclosures to attorneys and in court filings). Push for a definition of confidential information that excludes information that is or becomes publicly available, information you knew before joining, and information independently developed without use of company resources.
Buried near the end of most employment agreements is a survival clause—a short provision listing which sections of the agreement remain in effect after the employment relationship ends. The list is usually expansive: confidentiality, non-compete, non-solicitation, inventions assignment, indemnification, arbitration. Some agreements add cooperation obligations requiring the former employee to assist with litigation, investigations, or transition work after departure, often without compensation.
The survival clause is where employer obligations tend to disappear. Severance obligations may be conditioned on continued compliance with restrictive covenants. The employer's indemnification of the employee for actions taken in the course of employment may quietly drop off the list. Meanwhile, the employee's obligations to the employer survive in full.
What to push for: a balanced survival clause. The employer's obligation to indemnify you for acts within the scope of employment should survive termination (including a duty to defend in third-party lawsuits). Cooperation clauses should require the employer to compensate you for your time, including attorney fees if you need separate counsel. Any obligation that survives indefinitely (lifetime confidentiality is the most common) should be limited to genuine trade secrets, not general business information.
The natural reaction to a long list of potential problems is to assume most of them will never come up. Most won't. But the ones that do come up tend to come up at the worst possible moments: when you are being recruited away to a better job, when you are being laid off in a restructuring, when an acquisition is announced and equity is on the line, when you decide to leave for personal reasons and discover that a clause you forgot existed restricts your next move.
The cost of negotiating these provisions at the offer stage is minimal. You have leverage. The employer has chosen you, invested in the recruiting process, and wants the deal done. Asking for revisions to specific clauses, with specific rationale, is professional and expected. The cost of fixing these provisions after the fact, by contrast, is high. Once you are an employee, you have less leverage. Once a dispute arises, the agreement governs.
We have written about the fear that negotiating will damage your reputation, and the answer at the employment-agreement stage is the same as at the severance stage: professional negotiation, framed around specific provisions and reasonable rationale, does not damage relationships. It signals that you take the agreement seriously, which is exactly the signal a sophisticated employer wants from a sophisticated hire.
If you are reviewing an employment agreement now, work through it in two passes.
In the first pass, read every page. Note any clause you do not fully understand, any defined term that seems unusually broad, any obligation that survives the end of employment, and any provision that grants the employer unilateral discretion. Do not yet attempt to negotiate. Just identify the items that raise questions.
In the second pass, prioritize. Compensation provisions and termination provisions usually deserve the most attention because the financial stakes are highest. Restrictive covenants come next because they shape what you can do after the relationship ends. Boilerplate provisions—arbitration, governing law, severability—often look innocuous but can have significant consequences if disputes arise.
Then prepare a single, organized list of proposed revisions. Present them in writing rather than piecemeal over multiple conversations. A consolidated request with specific rationale (ex. "Section 7.2 currently restricts competition for eighteen months; we'd like to align that with Utah's one-year statutory cap") is far more effective than a series of objections that read as resistance.
Not every employment agreement requires attorney review. A straightforward at-will offer with standard benefits and no restrictive covenants may not justify the cost. But several signals indicate that experienced employment counsel is worth the investment:
In each of these situations, the cost of a focused review is modest relative to the value of what you are signing away. Experienced employment counsel will identify which provisions are genuinely problematic, which are standard, and which are negotiable, and will frame the requests in a way that protects your interests without putting the offer at risk.
At The Utah Employment Lawyer and Crook Legal Group, we help Utah candidates, professionals, and executives review and negotiate employment agreements before signing. We identify the clauses that create real risk, propose revisions that align with Utah law and market practice, and handle communications with the employer's counsel where appropriate so the negotiation is professional, focused, and effective.
If you have an offer in front of you, or an agreement coming up for renewal, contact us today for a confidential case evaluation. Text or call us at (801) 695-9039.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. Employment agreement issues are fact-specific; consult a qualified Utah employment attorney to evaluate your specific situation.
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