Sklover & Company, LLC

Employment Attorneys

Serving Executives, Professionals and Senior Managers​

ExecutiveLaw Indemnification Critical Benefit

8. Indemnification – Critical Benefit

“No matter how much you are earning, or how much you have saved,
your financial health can be denied to you by a single unexpected event in one solitary moment.”

– Iffco Tokio

“Risk and Reward” are the two ultimate challenges of our working lives. Note that in the phrase “risk and reward,” the word “risk” comes first. That is no coincidence, as the identification, assessment and reduction of risk in our lives are primary and paramount concerns.

Ever wonder why we all gladly pay for many different types of insurance?. . . it’s because each is a “risk limiter” against significant harm that may appear without warning, and if not in place, may lead to devastation of personal finances.

A. What is Executive Indemnification?
It is a contractual right from an employer (or an employer-paid insurance policy) that provides protection from the costs of a possible lawsuit, criminal charge or regulatory penalty that might arise out of your workplace duties. Ideally, the Indemnity is for both (a) the legal expense of defending yourself, and (b) the amount you could be held personally liable for.

B. Who Can Get Indemnification?
Commonly, the “articles of incorporation” or “charter” of incorporated businesses and other organizations provide that Officers and Directors are entitled to indemnification, but that is not always the case; prudence requires that it be confirmed to be in place.

As to executives and managers who are not Officers or Directors, an organization can provide such protections for them, too, either (a) out is its own coffers, or (b) in the form of an insurance policy, too, if only the right request is made in the right way at the right time based on a proper rationale.

C. Can You Request Indemnification?
Any Executive or Manager can request indemnification protection, and all should. Such requests are made most commonly (i) when negotiating a new job offer, (ii) at time of promotion, (iii) when a specific need for it arises on the horizon (such as a notification that a regulatory investigation has commenced) or when a class action lawsuit has been filed.

We have negotiated many, many executive employment agreements over the past 40 years, and in each and every instance, we have asked for an indemnity clause. In most instances, it’s been granted.

D. As to Legal Expense, Request “Advancement,” Not “Reimbursement.”
Would you rather lay out the tens or hundreds of thousands of dollars in legal expenses from your own pocket as the legal fee invoices come in, or have your employer (or its insurer) do so “in advance,” on your behalf? Surely, the latter is preferable. So, we don’t request legal expense “reimbursement,” but rather we request legal fee “advancement.” We also advise clients to resist the imposition of a “cap” on total expenses, especially in cases of possible regulatory or criminal investigations, as they often last a very long time.

E. Post-Employment Protection is of Critical Value.
Just like any other employment benefit, indemnification protection in executive employment agreements generally ends when the employment terminates. However, potential liability risk may exist for years. Care should be taken to request prolonged, post-employment indemnification by means of employment contract and/or what’s called a “tail” indemnity insurance policy.

F. As in all Contracts and Contractual Provisions, “The large print giveth and the small print taketh away.”
Frankly, all legal documents should be reviewed by someone with substantial experience. The same goes for drafting a contract provision in a legal document. A word here, a comma there, can make all the difference. In indemnification provisions, references to the law of different states, and to provisions in corporate by-laws are quite common, and so very often quite obtuse and opaque.

The work world can be a risky place. Attention must be paid to the multitude of risks that might arise in various circumstances, even those we cannot at this moment imagine.

When negotiating executive employment, we focus ourselves on risk identification, assessment and reduction, so that our clients can focus their attention on obtaining the maximum rewards available.

Always go with the firm hand of experience and expertise, especially in employment transitions and other “shaky times.” We are here to help you.

We offer confidential telephone consultations as a first, preliminary step in providing counsel to those with workplace or career problems or opportunities. They are available days, evenings and weekends, depending upon urgency. For those with questions related to matters on which we were retained and worked with them during the preceding 12 months, brief discussions, without review of new documents, are provided without charge. For others, our Schedule of Consultation Fees can be found on our About page. Consultation arrangements can be made with Ms. Vanessa Mustapha or Ms. Phyllis Granger at 212.757.5000, or by email to or

(If you have any thoughts, comments or suggestions about these Insights, please consider sharing them with us, by forwarding them to us at Thank you, in advance.)

© Copyright 2020 Alan L. Sklover. All Rights Reserved and Strictly Enforced.

ExecutiveLaw Career Brand

1. Your Unique Career Brand

“Either you are distinct, or you will become extinct.”
– Tom Peters

We are enthusiasts when it comes to the practice and pursuit of branding and, of course, when it comes to employment, the notion of “career branding.”

Each of us has a unique personal brand, namely what others think of when they think of us. It is their sum total view of what we offer the world, our value to others, and to our clients, customers, employers and colleagues. Your brand precedes you, empowers you, and follows you, wherever you go.

Your “career brand” is what your present employer and all potential employers think of your potential value to them, and thus what they need to offer you in return for your working for them. Your knowledge, skills, relations and reputation have taken a great deal of time and effort to learn, acquire, and develop, and is a reflection of your personality, character and the standards you have set for yourself.

You create your brand each and every day, whether you know it or not. If you don’t proactively create and enhance your career brand, you leave that critical task to luck and chance, or worse, permit others to define it for you.

The employment marketplace is an increasingly competitive place. New York Times columnist Tom Friedman has written “Good enough is no longer good enough.” We could not agree more. If you don’t have a distinctive, attractive, outstanding career brand, in the employment marketplace you are likely perceived as little more than an easily replaceable commodity.

Most of our clients have devoted and continue to devote significant effort and imagination to creation and enhancement of their own, distinctive career brand, and enjoy the multiple and varied “fruits” of their efforts. Their experiences are as inspiring to us as they are rewarding for them, in the broadest sense and spirit of those two words.

ExecutiveLaw™ Insights

  1. Your Unique Career Brand
  2. Managing Employment Risks
  3. The Recruitment Phase
  4. The Negotiation Phase
  5. Equity “Trap Doors”
  6. Climbing the Ladder
  7. If Difficulties, Disputes or Allegations Arise
  8. Navigating Employment Departures
  9. Continuing Restrictions
  10. Extending Career Longevity