can HR 'force' one to sign a Non-Compete agreement after 5+ years? 8

[FreddyZ]

IT seems my HR dept discovered that there is no non-compete agreement signed by me in my files. Suddenly they want me to sign one "as a condition of employment"... They seem to think that I had signed one initially, but I have no recollection of that, nor do I have a copy of this document, nor do they. Meanwhile a competitor company is poised to offer me a greatly improved position which would allow me to well utilize my Engineering Education, as opposed to squandering my talents at the present company.

Can they really FORCE me to sign a non-compete agreement "or else"?
If so, the "else" looks all the more attractive, and more so yet if I have NOT signed any such agreement.

I do not have the specific wording of the proposed NC agreement handy but the other company is much better run, and appears to make similar products, and is likely one of our competitors.

What say ye?
Anyone have experience along these lines?
Consult a lawyer?

I just want to be able to advance the technology, as best I can. If the present company would stand back and let me do that, with commensurate pay and respect, we'd be all set. Alas, that seems most unlikely.

 

[berkshire]

Do not let them do that!
Somebody in HR is trying to cover their butt. Especially if you were supposed to sign an agreement before you started.
If you are forced to sign one as a "condition of employment", and you do not want to, you would be signing under duress.
This may well have the effect of forcing you into the arms of their competitor.
Which from the comments you have just made, appears to be the last thing they want.
B.E.

You are judged not by what you know, but by what you can do.

 

[zdas04]

If I have this straight:
[ul]
[li]You do not currently have a non-compete agreement[/li]
[li]You do not like the company you are working for[/li]
[li]You have an offer from another company that looks (from where you are standing) to have much greener grass[/li]
[li]Your current employer is threatening your job unless you sign a non-compete[/li]
[/ul]

If those are the facts, then way are you not packing boxes? Requiring you to sign a non-compete under [implied] threat of dismissal is exactly the same as requiring you to sign one on hiring (i.e., "if you don't sign we will withdraw the offer" is the same as "if you don't sign we will withdraw your employment") and many court cases have called that duress. Others have not. Signing the new one with a company you don't particularly like when you have another offer on the table is just asking for trouble, pain, and misery. Find out today if the offer is real and if it is then pack your crap.

David Simpson, PE
MuleShoe Engineering

Law is the common force organized to act as an obstacle of injustice Frédéric Bastiat

 

[ajack1]

There is no mention of an offer from another company, the op says they are poised to make an offer, which could mean anything but in reality means nothing.

For any legal advice speak to a lawyer.

 

[moltenmetal]

Get all this in writing. Refuse to sign. If they do dismiss you, see a lawyer- in fact, see a lawyer NOW. You may have a very nice payday out of it for wrongful dismissal, followed by a career with a competitor of theirs. If worse comes to worst, you're still out of a place where they play bullsh*t games like this with you. That's a bad, bad sign.

 

[Maui]

Do NOT sign the non-compete agreement. You will regret it if you do. There are many examples given in these forums of people who have done this and later wished they had not. I agree with Moltenmetal - consult an attorney NOW.

http://www.EngineeringMetallurgy.com

 

[fegenbush]

I agree with the above posts regarding contacting an attorney. However, I would like to present specifics of how to handle this situation with HR.

1) Tell HR that you will have your attorney review any documents prior to you signing anything. By doing this, you can get them off your back for a while.

2) Actually have an attorney look at the document(s).

3) If the competitor is going to make you an offer, this strategy provides time for them to do so. If they are not, proceed to 4)

4) With your attorney, write in changes to the non-compete to the effect of "Company X to pay full salary and benefits for the duration of the non-compete agreement." Make sure there is language in there that covers the amount of salary and benefits.

 

[moltenmetal]

Go one better: tell them that if this is a condition of employment, that you'll be retaining a lawyer to review what they've asked you to sign and, since this is a matter which apparently affects your employment with them, expecting THEM to pay the bill. They don't agree? Or offer the company lawyer to do it for you? Hire the lawyer yourself anyway. But this will throw them off their game for a while- good stalling tactic for sure.

 

[SNORGY]

Again...seriously? Is this typical of how companies behave external to Canada?

And...5 YEARS? Seriously?

Surely no judge in his or her right mind is going to ever rule that they can prevent or hinder you from obtaining employment for 5 years, unless the legal system is just as messed up as the corporate culture...

Apart from that...everything everyone else said is correct. Another star for fegenbush.

 

[MikeHalloran]

On a not completely unrelated note,
a year after I started at a company, they discovered that I hadn't signed a patent assignment agreement, nor had anyone else who had been hired in the most recent few years.

They herded us all into a conference room. A guy in a suit introduced himself as a lawyer, and said, basically:
- This meeting never happened.
- He was never here.
- We would each sign the papers being passed out.
- If we didn't sign them, we would be fired on the spot.

I crossed out the parts I didn't like, made some amendments, signed it, and left.
They only discovered the amendments as they were processing me out as part of a regular RIF some time later. I should have made them more outrageous.


Mike Halloran
Pembroke Pines, FL, USA

 

[Maui]

Snorgy, this is not uncommon here. When I was laid off from one of my previous positions I was offered a decent severance package. But it was contingent upon me signing an agreement that would have extended my 1 year non-compete agreement by an additional 3 years. It also included several other things that were equally unappealing to me. I refused to sign it.

If signing one of these agreements is a requirement for any future position that I might be offered, I will walk away. Life is too short to have to deal with this kind of crap.

Maui

http://www.EngineeringMetallurgy.com

 

[DHambley]

FreddyZ,

First of all, I'm not clear on your post; You have been there 5 years? or is the non-compete for 5 years?

For sake of argument, I'm assuming a 1 year non-compete which which I don't consider unreasonable, but be VERY careful of the text. I have negotiated a few non-competes and IP contracts in my time - Be cautious of any text which states in effect, "you can't use any of your talents to get any job for x years". Another one I had to alter stated that any of my own patents I had previously could be used by the company for free. I kid you not. The HR manager said, "all of our contractors sign that, it's just standard". I guess I'm a rare contractor who actually READS contracts.

Darrell Hambley P.E.
SENTEK Engineering, LLC

 

[tygerdawg]

What makes you think that your company's HR Weasel is not in contact with the new company's HR Weasel? Over the years I have discovered that there's no secrets between HR Weasels. Company to company, they all talk together. And conspire together. That's what makes them weasels.

TygerDawg
Blue Technik LLC
Virtuoso Robotics Engineering

http://www.bluetechnik.com

 

[FreddyZ]

Interesting comments, thanks for the input. I tried to get ahold of a labor attorney today, but had no luck due to other duties.

I have been with the company around 5-6 years. I am not clear on the exact wording of any previous or upcoming NC agreement- the duration I am sure can't be less than a year. To know the specifics is why I had to request a copy of the document.

Maybe I need to work for my friend's company as a consultant, and from that position, work for various companies.

 

[KENAT]

Depending where in the world you are then it's entirely possible that yes they can fire you for not agreeing to sign the agreement.

Depending where you are in the world and the exact wording of the agreement it may turn out that it's not legally enforceable anyway but that's probably for a lawyer to advise.

Sounds similar to something that happened at my place just before I joined. This site had been its own separate company and then got sold to a bigger corporation. Bigger corporation after a year or two required people to sign "confidentiality agreements" which were effectively more correctly termed non competes. Many folks were unhappy, the lead of one R&D section refused to sign it and ended up leaving to join the competition just up the road (literally we are separated by one building & the parking lot). It was pretty ugly by all accounts.

I now rent a room from that same guy.

We've since been sold to another corporation whose agreements weren't quite as bad but were poorly worded to say the least. Many of us brought this up and head of HR was Jonny on the spot about getting clarification & emailing it out. Bad news is the agreement explicitly said it could not be amended so the emailed correction/clarification is arguably worthless!;-)

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[tickle]

I think that there may be a certain amount of toothless tiger in non-compete agreements. Company A cannot stop a person making a living in their profession at a level equal to their experience. Therefore, as long as you are not actively using any IP gained from company A or undermining company A then it is likely that they would not be able to enforce the non-compete, or have a hard time proving it. Also, if Company A did go after someone who left the organisation, it would get a reputation and people would not work for them. Therefore the company probably has more to lose than the individual.

 

[GregLocock]

Not exactly a toothless tiger, more like russian roulette according to the lawyers

http://object.cato.org/sites/cato.org/files/serials/files/regulation/2010/12/regv33n4-2.pdf

which is a pretty readable article by an academic lawyer.



Cheers

Greg Locock


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[curiocity]

Anecdotal experience from previous start-up law seminars... if you live in California, they're a state that non-competes do not hold up in. (and even if you don't, check the law for your state). Other states, the majority of them non-competes for more than 2 years will not hold in court. But can they force you to sign a non-compete... conditional employment, probably yes if you wish to continue working with them.