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  1. #11
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    Default Re: Can an Indemnification Clause Be Enforced when the Company Misclassified a Contra

    Thanks for your reply but it does little to explain what an affirmative defense would be to the indemnification clause in law, should one have to answer a complaint.

  2. #12
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    Default Re: Can an Indemnification Clause Be Enforced when the Company Misclassified a Contra

    Sure it is.

    Your honor, the clause is illegal because of laws, A, B, C.

  3. #13
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    Default Re: Can an Indemnification Clause Be Enforced when the Company Misclassified a Contra

    Before you get to your honor, you have to cite the law or the precedent that makes the clause unenforceable in your answer to the complaint.

    So what law (statute), precedent (case law) do you know of that would make the clause illegal in NJ or NY?

  4. #14
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    Default Re: Can an Indemnification Clause Be Enforced when the Company Misclassified a Contra

    The laws that state you are misclassified in the first place.

  5. #15
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    Default Re: Can an Indemnification Clause Be Enforced when the Company Misclassified a Contra

    The laws about misclassification as an independent contractor or an employee are very different than contract law. What controls in labor law is not what controls in contract law.

    Here we are talking about defense in contract law. Not employment or labor law.

  6. #16
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    Default Re: Can an Indemnification Clause Be Enforced when the Company Misclassified a Contra

    Fine budwad, since you don't seem to understand that a clause in a contract can be made unenforceable if the point of that clause it to get someone out of following a law then I'm pretty much done with you on the subject.

    But I'll try to make it somewhat easier for you to understand one last time. The federal minimum wage is $7.25/hour. There is nothing an employee can sign to allow an employer to pay them less than that.

  7. #17
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    Default Re: Can an Indemnification Clause Be Enforced when the Company Misclassified a Contra

    Quote Quoting PayrolGuy
    View Post
    Fine budwad, since you don't seem to understand that a clause in a contract can be made unenforceable if the point of that clause it to get someone out of following a law then I'm pretty much done with you on the subject.

    But I'll try to make it somewhat easier for you to understand one last time. The federal minimum wage is $7.25/hour. There is nothing an employee can sign to allow an employer to pay them less than that.
    Agreed. Misclassification falls in the same category.

  8. #18
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    Default Re: Can an Indemnification Clause Be Enforced when the Company Misclassified a Contra

    Both of you are misunderstanding the question. When a complaint is filled and served, it has counts as to what causes of action are alleged. Any count that alleges a violation of the labor laws about misclassification is not about enforcing a contract or breach of that contract. Those would be separate counts.

    I am specifically asking about the indemnification clause of the contract. Not violations of the labor laws. You don't answer a count about indemnification with the violation of labor laws. There has to be a nexus as to why the indemnification clause cannot be enforced that is founded in the law. Each count of a complaint is tried on it's own merits.

    If I got sued under the indemnification clause because the company was assessed damages by the Federal or State government, I would have to defend against that indemnification clause. I could also counter-claim for the misclassification. But I would still have to argue that the indemnification clause could not be enforced under some theory of law.

  9. #19
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    Default Re: Can an Indemnification Clause Be Enforced when the Company Misclassified a Contra

    Hire a lawyer.

  10. #20
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    Default Re: Can an Indemnification Clause Be Enforced when the Company Misclassified a Contra

    Touché. When and if that time comes I will go it Pro Se or hirer a lawyer. For the time being, I'm just trying to understand the laws that may apply.

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