Today was supposed to be the first day of my gig job with Exos leading a group fitness class at the JCC. Instead, I am writing this blog post because the agreement Exos wanted me to sign would prevent me from making a living now and in the future. While this blog post is not legal advice, I am writing to raise awareness of legal challenges like unfair working contracts for gig jobs that have replaced traditional full-time, permanent employment with insecurity and inconsistent income.
Now that the USA is so corrupt that an honest scientist like me cannot find employment, I applied for one of the very few opportunities to lead a group fitness class in the area where I live in the Twin Cities of Saint Paul and Minneapolis in Minnesota. The American company that posted the job, Exos, manages fitness centers including the JCC in my neighborhood. I customized my resume and cover letter according to the job description and went through the application process. A little while later I was contacted for a phone interview. The phone interview went so well that I got to do a bunch more work supplying proof of my certifications and credentials. Then I prepared a sample class and performed it for the in-person interview at the JCC. The Exos team member who was to be my manager and her friend who works with her were my participants for the sample class and they both told me afterwards that I “nailed it,” which is an expression used to comment on the successful, skillful, or clever completion or performance of something. Still, my would-be manager was interested in another format that I could teach and have taught, but wasn’t teaching currently. I said I would be happy to do it even though it takes a huge amount of unpaid work and time to design, rehearse, and prepare to lead a 45- or 60-minute group fitness class in exchange for no guarantee of anything at all.
Then I waited and waited and waited to hear back from my would-be manager. After about three weeks, I finally got an email apologizing for the delay. The next step was to be a phone call, and I said she could call me anytime. I carried my phone around with me everywhere for a week before I finally got another email with more excuses. Again, I was polite and understanding and again I waited for a phone call that never came. This time the computer phone system was to blame. So, she sent me an email offer to “teach some classes” at the JCC. My understanding was that I would have one class per week on Friday mornings and maybe get an opportunity to be a substitute for someone else’s class if they got sick. I would get paid $35 per class before taxes and all of my expenses including liability insurance, music licensing, First Aid CPR/AED certification, continuing education to maintain the required group fitness instructor certification, appropriate attire and footwear.
I happily replied to the email to accept the offer. Then a couple of days later, I received an email telling me to review and sign documents, including an “Employment Agreement” and “Employee Handbook.” I don’t know why they call it an “Employment Agreement” because I was not offered any employment. In fact, I really wasn’t offered anything. The offer merely stated that I would be paid $35 per class and that “there is no guaranteed number of classes per pay period.” So, if I got to teach a class at the JCC, then I would be paid $35. This is simply notification of the per class pay rate. This is the opposite of employment.
In exchange for not being offered anything, signing Exos’ “Employment Agreement” would prevent me from making a living because it says in the agreement: “Employee agrees that, in consideration of their employment hereunder, Employee shall not (a) prior to the date of Employee’s termination, work or perform more than fifteen (15) hours in any week in any material non-EXOS capacity for, any Client, Solicited Entity or Competitor… .” “Client” is defined as “any person who is receiving, or who in the past has received, any Business services of the EXOS companies.” “Solicited Entity” is defined as “a person with whom the EXOS Companies have had communication for the purpose of causing that person to become a Client.” “Communication” is specified as pretty much any form of communication you can think of, including messaging or posts on social media, which excludes me from my entire neighborhood, for example. “Competitor” is defined as “any person offering, as a primary, substantial, and/or non-incidental part of their/its business, services similar to the Business of EXOS Companies.”
So, I could not work for more than fifteen (15) hours per week for any other business offering services similar to Exos Companies, which is far-reaching in the USA fitness industry to say the least. That means I could not be a full-time employee and have benefits like health insurance.
Of course, there is no list of who Exos’ clients, solicited entities or competitors are because they keep that secret. Therefore, signing the agreement would prevent me from working anywhere else in the fitness industry for more than fifteen (15) hours per week. How, then, am I supposed to make a living when Exos is not even guaranteeing me an hour ($35) per week?
Did I mention that Exos’ “Employment Agreement” is six (6) pages of some of the most one-sided and draconian legalese I have ever encountered. No wonder so many people have signed it because it is so technical, confusing, lengthy and difficult to understand. But there is good news for those who signed the agreement on or after July 1, 2023.
As of July 1, 2023, non-competition agreements are no longer enforceable against Minnesota employees or independent contractors in most situations.
Another part of the agreement that I could not agree to that is worth mentioning is that “Employee further agrees that, in the event that following the date of Employee’s termination, they work or perform for any Competitor, Solicited Entity or Client, Employee will notify such employer to the existence of this Agreement.”
That means if I ever want to work in the fitness industry, even after terminating my agreement with Exos, I would have to notify any potential employers of the existence of the “Employment Agreement” I had with Exos that obviously survives my termination since I would have to mention the agreement to any potential employer in the fitness industry for the rest of my life. Even worse, the agreement is confidential, so there would be no way for that potential employer to even know what legal challenges I had agreed to or how that could affect them.
So, I would never be able to work in the fitness industry again after terminating my agreement with Exos and I could not work anywhere else for more than 15 hours per week while working for Exos who has offered me $35 for any classes I may or may not be offered to teach at the JCC.
I didn’t sign Exos’ “Employment Agreement.” The email with the written offer gave an email address to contact if you have questions or need assistance. I copied my would-be manager on an email asking that the agreement be revised into something that is legal in Minnesota and that would be fair to me so that I could sign it. The only response I have gotten is some cyber stalking by Exos’ automated email system reminding me to review and sign the documents, the same documents.
Exos makes an estimated annual revenue of $100-$500 million dollars off the backs of gig workers. Mark Verstegen is the Founder and President.
The USA labor market is full of independent contractors and freelancers working flexible, part-time, seasonal, temporary, and/or short-term jobs. Not counting gig workers in the unemployment numbers makes the health of the economy look much better than it is, which serves to prop up a stock market built on speculation.
Again, this is not legal advice. Don’t sign anything you have not read. Don’t sign anything you don’t understand. Don’t sign anything you don’t agree with. Don’t give up your fundamental rights for nothing in return.