Confidentiality and Noncompete Agreement 2.5 years into employement 5

[uGlay]

so i was just handed (actually the entire department) a non-compete agreement. everyone promptly signed it with no questions however my role in the firm is that of a mechanical design and i am constantly creating solutions for mechanical problems which require creative thinking and design.

i would have no problem with it except for the fact that a few weeks ago i was in talks of patenting one of the products which i have worked on for over a year.

so basically i was in talks of including my name in the patent of such product (since i pretty much came up with the solution) I as well as project managers and engineers thought it would be fair for my name to be on the document.

now ive been handed this paper, to everyone it was like 'whatever' because everyone else is doing electrical design which there aint much to it just a bunch of lines in cad (ok ok im exaggerating) but everyone signed it. and im the only one who hasnt signed it.

anyways, sorry for my post if it is a bit unorganized but i am a bit shaken right now..

what would you do fellow Eng-r's. I am torn. they are saying i either sign it or im done for in this company.

basically the doc starts with "Whereas employee desires to become or remain employed..."


p.s. ive signed many NDA's with no issues, but this case is different because i was in talks of furthering a patent. Its offensive.

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[moltenmetal]

Sorry to the OP- it appears I forgot about the non-compete part of it.

Being asked to sign a non-compete AFTER you've been employed for a time is a definite no-no. If you sign it, make sure you put it in writing that you signed it on threat of termination of employment, which apparently is the case. I'm confident that such a non-compete would be unenforceable, even if you didn't put that in writing, since you have the memo which says, "Whereas the employee wishes to remain employed..."- that sounds like plenty of proof that it was being compelled.

Non-competes are usually unenforceable anyway, except in cases where the people involved are less employees and more business partners. Employers can't prevent former employees from earning a living. While that is true, former employers CAN scare off your potential future employers by threatening legal action in an attempt to enforce a non-compete. Many employers are not made of stern enough stuff to get involved in a legal battle over a new hire- they'd rather just send you on your way. I've seen that happen before.

 

[patprimmer]

I think a lot here are advising uGlay about legal rights, BUT we still don't know where he lives and works. Laws are most definitely different in different countries and different states. He may well not live where you live.


Regards
Pat
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[YoungTurk]

I'm with molten on this one. The big deal is the non-compete. The impact that would have on you is dependent on your situation, but if you could/would be held to it the financial impact might be significant.

Is it possible the patent you're working on got them worried about losing IP?

From my experience as a listed inventor on a patent, I don't think you stood to gain financially from the patent unless (a) the company decided to share the wealth (some do, most don't) or (b) you were willing to use the patent as proof of your knowledge of the product type in the job market. A non-compete is intended to prevent you from doing things like (b).

 

[moltenmetal]

Pat's right of course, and more than once posters like myself have admonished the OP to seek real legal advice from people qualified to give it.

 

[kontiki99]

Let me get this straight. If everyone signs the NCA, then they lay everyone off, nobody can get a job with a competitor?

I think before I'd sign something like that, I'd want a contract to guarantee my own employment for some length of time at some specific salary and severance.

I've always wondered about just quietly signing unfair documents with something like Donald Duck in some elegant script.

 

[patprimmer]

My favourite non de plum is Yogi Bear, or Yogi B Bear if a more formal tone is required.

Regards
Pat
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[BRGENG]

If you are not in ownership, or at least paid an owners wage, do not sign a non-compete. You will regret it greatly when another opportunity presents itself.

 

[HgTX]

How does one successfully refrain from signing such things?

Hg

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[patprimmer]

HG

I think that depends where you live.

Certainly here, right now, if an employer sacked a worker for not signing an agreement to allow a downgrade in their contract, the employer would be punished severely under the law.

Regards
Pat
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[btrueblood]

In the US, it is fairly common knowledge than non-compete agreements are not worth the paper used to print them, being un-enforceable and likely tossed out by most judges. The only time they work is if they are very specific about who you will not work with/for, and a monetary compensation is given.

But, as noted elsewhere, the OP may or may not be in the US, and the above is not the opinion of a lawyer. In fact, it's about as far from being the latter as possible.

 

[HgTX]

(1) What about non-compete agreements required for starting, rather than continuing, employment?

(2) If they're so widely known to be useless, why do they still exist?

(3) I did know someone who had to lie low for a year because of his non-compete agreement. These agreements are only ineffective for people who have lots of spare money to hire lawyers?

Hg

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[IRstuff]

In certain government jobs, non-competes are common AND enforceable, since the people might otherwise wind up in a position to violate FAR procurement rules.

TTFN

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[patprimmer]

Patents and disclaimers are also not really enforceable but they still exist for bluff value or to intimidate the meek or uniformed.

Regards
Pat
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[patprimmer]

Opps

Or those who cannot afford or do not wish to spend mega$ on lawyers.

Regards
Pat
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[IRstuff]

As I mentioned before, the Lemuelson Foundation has a cadre of lawyers on retainer, and their sole purpose is to create revenue for the foundation by suing for infringement of Lemuelson's patents, of which there are many.

TTFN

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[stevenal]

"Whereas employee desires to become or remain employed..."

Assuming you are presently an at will employee, it seems this agreement might create an employment contract where there was none before. But I did not sleep in a Holiday Inn Express last night.

 

[HgTX]

IRStuff--true enough; I'm a government employee and I don't need to sign a special non-compete agreement because it is encoded into state law. Fortunately, it's pretty restricted in scope--most of us do end up in the private sector when we leave.

Hg

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[btrueblood]

Ok, I should have been more specific. In general, I have been given NCA's to sign which, a) are not limited in scope (whom exactly I may not work for) nor time duration, and b) typically had no due compensation for my lack of employability after termination as a result of the NCA. Both are reasons for such NCA's to be tossed out of court very quickly. The OP's situiation, with the addition of "sign this or get out" coercion makes it less likely to be enforceable as well. In general, in the US, an NCA that limits somebody's employability, without due compensation (i.e., to the extent of "pay me my salary for the year that the NCA is in effect"), won't hold up.

Again, this is legal stuff, and I'm not a lawyer.

http://en.wikipedia.org/wiki/Non-compete_clause

 

[btrueblood]

Sorry, should have added:

In EVERY case, 5 times or more so far, even when given an NCA "after the fact", I have signed, knowing the contract would be unlikely to be enforced, and subject to countersuit should it become necessary. That's probably unethical of me, but then, so is asking an employee to sign one.

 

[YoungTurk]

uGlay - how about an update? Has this played out yet?