Well, maybe they just misplaced the agreement that he signed initially. My friend has a competitor company prepared to offer him a position with much better pay, which uses his skills. The competitor company wanted to see the exact wording of any non-compete form which my friend had signed, and when he could not find a copy, he asked the HR person for a copy of it. Their reply was that this document could not be found. Followed by, 3 days later, "you WILL be signing one of these right away."

My friend went to see a lawyer Friday but was unable to arrange a consultation on short notice.

My friend says:

"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 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.

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...."

Some of the online replies from presumably non-legal experts include:
++++++++++++++++++++++++++++++++
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.
+++
If I have this straight:
You do not currently have a non-compete agreement
You do not like the company you are working for
You have an offer from another company that looks (from where you are standing) to have much greener grass
Your current employer is threatening your job unless you sign a non-compete
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.
+++
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.
+++
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.
+++
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.
+++
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.
+++
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.
+++
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.
+++
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.
+++
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.
+++
+++

 

That's just pitiful.

Maybe they'll have him sign a retroactive pay cut while they're at it - might as well, if he's dumb enough to sign it.

Hope he gives them a big smile and a wave as he departs.

- Eric

 

The only time a company can reasonable ask that you sign one is at the hiring. After 5 years, they can ask, but the employee is well within his rights to refuse. And after 5 years, if they were to fire him for refusal, a wrongful dismissal case would be a cake walk.


Our company tried to get us to sign one ... we collectively told them to pound sand.

 

If you're an "employee at will" they fire you for any reason and you will have no case. Either sign the non compete or negotiate the new job and leave. They can certainly make you sign a non compete any time they want unless you are bound by a collective bargaining agreement or other previously signed contractual terms.

 

As an HR manager for a bank with over 4K employees, it was routine to audit the HR personnel files. During the audit, should any forms be missing it was HR's responsibility to get those missing forms completed and returned to the file. It didn't matter how many years you've been employed or how long those forms have been missing.

Should you not sign the non-complete form than the recourse for your employer is to terminate you. Of course if you're changing employers than it really doesn't matter. The worst case scenario for you is your employer turns the HR department upside down and finds your missing form after you left, than they act on the repercussions described in the form. But most likely, if they don't have the form now they wouldn't find the form later. You may want to request your file be pulled and you spend a few minutes reviewing everything that's in there. That way you can be sure what's on file.

Chris

 

Well, interesting. It looks like just another case of The Man screwing the worker and getting away with it. There was one guy moved on to another job recently but it was for a decidedly different type of company, or so he says.

One option would be for the current company to treat the employee well so that he doesn't feel the need to search elsewhere.

 

Non-competitive agreements these days are basically unless and have no teeth. No way can these keep you from gainful employment outside the company that made you sign.

 

+1. There's actually a fair body of case law on this, and the actual restrictions that can be imposed, both on type of work, and on distance from the original job, are quite limited. They can try, but when it comes to trial, they lose, and any decent HR department knows this. They may try to trick the employee into thinking he has to follow the letter of the agreement, but they know darned well that they can't enforce it.

- Eric

 

I have to disagree and if they were completely useless they would not exist. The issue at hand when someone leaves a job for another and a non-compete exists is what harm would the original company endure if the employee went to the other company. On top of that, the restrictions need to be reasonable in terms of geography and time. If someone was selling computer software and the agreement said they could not sell software for any other company for a period of 5 years, that agreement would be worthless because it is much to broad of a statement. But if it was limited to the same industry, in the same area the employee did business and for a time frame closer to 18 months, it can and is enforceable. The original employer can decide when and if to use the non compete and if the employee by way of going to the other company would have a direct negative impact on the original employer, it can be enforced and it will stand up in court. I know someone who went through this and it financially ruined him. Also keep in mind that companies have much deeper pockets than most individuals and they can tie this up for years in the courts to financially bleed the employee to death. The question to consider is will this move to the other company directly and negatively affect the original company and if it will, and if a non compete exists, I'd be very careful.

Brian

 

You just agreed with me.

The OP(ish) never signed a non-compete.

That's the point. He can do anything he wants.

- Eric

 

There may have been a NC form signed initially, but if no one can find it now, then there is none now.

The specifics will be known in a little while.

I guess if it were me I wouldn't want to burn any bridges but I would not divulge ANY specifics about the new place of employment either. That falls under "nunya" as in "nunya damn bidnet"

 

Basically, he needs to be straight with the potential employer and say, "Look, I don't remember signing one, but I did as you asked and had them check. Now they say they can't find one, but I should have signed one, so they want me to sign one now, or else.
If you want to hire me, I'd love the job, but it looks like we need to strike while the iron is hot, for both of our benefit."

- Eric

 

Laws vary state to state. In Florida, it is generally "believed" that if it ever got to trial, it might be hard for the company to win. BUT, the company has endless resources compared to most individuals. It can be very expensive to fight it, and no attorney will take it on contingency because there is no big payoff for him if he wins at trial. The company can get an injunction to stop you from working, and you have to hire an attorney to go to court and fight it. Non competes are definitely for the employers benefit, not yours. I'd look long and hard at the new job. If it is better and there is no existing non-compete, I'd change jobs.

 

This is where I disagree because they can be enforceable and many times are enforced. It all comes down to the specifics of the agreement, the industry and the companies involved. And this is why the new potential employer is asking about a NC as they know they can be enforced and that they, as the new employer, can be pulled into that mess which they want no parts of it.

As was mentioned, there is the possibility that a NC was signed and therefore exists and as a result, the person needs to be careful.

 

I'll chime in as I've been thru the legal process regarding an NCA...
This ^^

The agreement itself may be on shaky legal ground.... But, are you willing to spend mid 4 to mid 5 figures and 1-2 years of litigation (or, if you get lucky, the company will propose a settlement at some point in the proceedings..) to find out ??

Don't know what state this is in. Most states allow employers to terminate employment for any reason...or no reason at all. So, the friend's current employer is probably within it's rights to demand signed NCA 'or else'.


To the OP - Sounds like friend needs to make a decision....

1. Demand, er 'request', (in writing) a copy of any NCA from the current employer as condition of consideration of new NCA. Discuss situation with perspective employer. Use current employer's response to satisfy perspective employer's request. Hopefully new employer is satisfied and hires.
-or-
2. Use lack of NCA and potential new opportunity as leverage with current employer to negotiate much better deal !
-or-
3. Weenie out, meekly sign new NCA, and slink back to cubicle...

Just my .02...

 

The best advice given here is “Be Careful” if you have some vacation time or sick time, take a few days, see a competent lawyer that has knowledge of the laws and the mood of the courts in the state/county you liveit. In most cases rule of thumb is very basic,

Do you own stock of any kind in the company your work for?

Do you receive bonuses based on the profits of the company you work for?

Do you receive additional pay from sales you generate atyour job?

Do you have a profit share 401k or retirement plan?

Do you receive a home office allowance?

Do you have a company provided computer or cell phone thatyou control outside of the company?

Do you receive leads from the company that assist you indoing your job?

Are you a manager that supervises technology, sales, or development of your company’s products?

These are just a few things that off the top of my head may enfluences company’s ability to enforce an NC. Even in a state that is “At Will”

Once again, the best advice, don’t rely on a hobby based website for advice on your career or personal life, take a few days off, and go see a professional. One other option, talk to HR and or your boss and see if they would consider giving you a promotion and more money if you take on more responsibilities.

Just my 2 cents.

 

One other option, talk to HR and or your boss and see if they would consider giving you a promotion and more money if you take on more responsibilities.
=====================
Thanks for the responses guys
He can't get a local employment lawyer to return a call. Maybe a visit Monday- no work due to Prez Day.

Part of the problem is that the guy's boss IS the problem. And, to an extent, the HR person. Lack of respect for the skills available, nano-management... and the guy has basically no one in the company to talk to that will be on HIS side. Small organization.

Example
large fiberglass housing to be prepped for a show unit, needs fiberglass slivers removed for safety of the guys that have to handle it, in a small maybe 2" range where it needs to be touched. My man gets out the 4" grinder with flappy disk. Manager berates him and screams just go to the store and get some sandpaper and a block and be done with it. "Do I need to to SHOW YOU HOW TO DO THIS!?" The guy, fed up with the disrespect for his skills, replies, "yeah, sure, show me that technique." So the manager proceeds to take an hour to go to the store and get sandpaper and hand sand the housing [with good risk of getting FG slivers]. The DeWalt would have been done in 10 minutes. With better results.

So:
Caveman rub rock on housing
Supervisor rub sandpaper by hand
My man would use proper power tool
My man WOULD use a CORDLESS power tool if in charge of buying the tools. Like he supposedly is. Not even have to get out an extension cord and find the rare 110V outlet in the production area.

Nano-Manager tells the guy over and over how valuable the guy's time is, Oh Dear God, what it costs the company.... but then assigns tasks like snow shoveling. To the degreed engineers. Squandering skills like crazy. Not calling for input when designing items, therefore leaving numerous improvements off the table. We used to have monthly or biweekly meetings so that all the various branches were up to speed on what issues are causing trouble, what new products are in the works and where they stand... Have not been doing that for oh 2 yrs now. Testing machines needed? No allowed input, therefore poor decisions are made resulting in poor test machines. Fitting alternate motor to device- takes three months to get around to consult my man, by then the wrong type motors have been ordered and delivered, which no one else caught, and then has to be remedied. Which takes weeks. No recognition or reward for solving such snafus.

Oh and the other company it talking like 2x the money.

 

I think a lot of ppl have to realize that since the downturn of 2009 we all have to do what we have to do to make a living. Do not let any company hold you back from what you believe can better your situation. I could go on about the whole system but Hey if its better across the street go get it. If you can go out on a limb and make it in your own business go do it. No matter what you sign today tomorrow always changes as does the next day.

 

He needs to get out like the place is on fire.

- Eric

 

Absolutely!!! with no worries going forward. Even if I signed a new deal under stress I'd say I'm gone Litigate me up the *** no problem I'll show up for the party pal.

 

I work for a non-compete corp within an industry where non-compete is standard. Even to the point of being paid after being terminated to not compete.

i had to disclose prior conceived ideas if I wanted to protect my ideas as my own and do something with them after I leave the company.


It's HARDLY the man screwing the Worker. You want to work for the man, accept their terms. If not dont join or quit. Accept the man and his paycheck or not.

It's simple sign it at time of hire or when ever they want ..... Or choose to not work there.

 

In most cases its not the man your working for its the stake holders that hold the stake over you , If they feel you have to much knowledge after years of experience and service they figure the can hold you back with BS on paper . Yes you can get away with paid termination however they try to limit you in your next adventure. The world doesn't operate that way anymore, patents mean nothing nor do code of conduct its survival in a tough global economy.

 

Enforceability relies on reasonable time and reasonable distance.

 

Stake holders have no connection to or impact on what action is taken on an employee. I own stock in several corp, I haven't a clue who comes, goes, gets fired or paid to stay home.

On NC.....

In some cases it's too much experience, some times an employer doesnt want the terminated employee to let a competitor know what's 2 years out. It's cheaper to pay the employee to stay home than have the competition know future plans.

I take code of conduct seriously, why jeopardize your ability to earn a living? I'd also not divulge a new employer anything improper because they would realize if i did it to the last guy why wouldn't I do it to them?

How many patent cases do you follow? Last two in my field were ~$100 million.

If patents don't mean anything let apple and Samsung know.

 

You can pic up an apple or Samsung knockoff at you local Chinese corner store of course their not in plain view . The list goes on!! Heck
pic up a burnt DVD not even released yet.

 

Doesnt mean you comment is true "patents mean nothing".

 

Anuff Said.

 

okay, see you later.

 

x2

 

Lawyer says the guy does not have to sign any such thing...

the plot thickens.

 

Told ya so.

 

Exactly.

I'm no labor lawyer, but it seems fairly reasonable that they can have a policy that all new hires need to sign a non-compete agreement (or a non-smoking agreement, or whatever), or they can roll out a new program to have all existing employes in a certain category do so, with appropriate lead time), but they can't single out one employee to spring this on, with no warning and no alternatives. If they want to use it as an element of a renegotiated contract, whether at contract time or otherwise, that's fine, too, but if they hired him without one, they can't unilaterally change his contract without his agreement.

Of course, if he's going to push back, he needs to make sure that his desk and his locker have the bare minimum of his stuff in them and that his work computer is well backed up...

- Eric

 

Unless you're part of a collective bargaining agreement or a senior level manager it's doubtful you have a contract. Without a contract you're an employee at will. Take it from someone that was fired for no reason, without notice, after just receiving a stellar review, and an 8% raise. You can be fired for any reason at any time. About your ONLY recourse is age discrimination if you're over 50. BTW, I consulted with an attorney too... (btw, technically I wasn't fired because I was laid off and got unemployment, which this company will likely do to avoid any problems)

 

I may be way wrong here, but I doubt that they'd be asking for a non-compete if his job involved saying "Do you want fries with that?"

- Eric

 

"Would it be impolitic for me to have that phrase printed on Tee shirts and have them for sale on this site?"

Eric, bravo!, it was raining BBQ sauce as I read it.

 

I've been a senior level manager for the last 20 years and I've never signed a contract. I've received offer letters for employment spelling out terms and conditions all of which conclude with my employment being "at will". Some have had non-compete provisions, some have not. My current job has such conditions though the offer letter specifically states that I sign a non-complete clause as a condition of employment. Interestingly enough, I've never signed one.


BTW I haven't work at McDonalds since I was 16 (my first job actually)

 

Yes, but as you are painfully aware, senior level managers can be hired and fired at whim - as you noted, its part of the job description.

- Eric

 

Did the lawyer review the company policy?

I'm with Mike on this one. House rules or find a new house.

Employees don't get to choose what rules they want to follow.

 

Right.
Waiting on word from the new house.

interesting perspective:

http://object.cato.org/sites/cato.or...regv33n4-2.pdf

Wherein we find, among other things:

"New empirical evidence reveals the economic
harm of non-compete covenants.
By Alan Hyde | Rutgers University School of Law

Law students laugh when they first learn that the law will
only enforce a covenant not to compete — that is, an
employment agreement that the worker will not leave
the firm and go to work for a competitor — if the covenant
is judged “reasonable.” (Since “covenants not to compete”
is cumbersome, everyone now seems to call them “noncompetes,”
and so will I. They are also sometimes called “restrictive covenants.”)
A vaguer legal standard is hard to imagine.

"...states like California and Colorado that never enforce noncompetes signed
by employees.

"When, if ever, should noncompetes be enforceable? This question
is very difficult to answer if approached as a theoretical question.
It all depends on where you start, but, wherever you start, the
noncompete will seem like an anomaly.

"a noncompete is just a judicially enforced restriction on freedom
of contract.

"Recently, however, some of us have suggested
— thinking about high technology industries in states like
California and Colorado — that the nation would be better served
by never enforcing noncompetes. Now, very recently, we have the
first hard data that indicate that most regions and industries,
and certainly employees and the general public, would be better
off if noncompetes were completely unenforceable, as is true in
California. (See “Hurd on the Street,” p. 2.)

"It turns out that most firms have more to gain from openness than from
secrecy.

"...full enforcement
of noncompetes reduces venture capital, business start-ups, and
patenting. The finding on patenting is crucial: The sole legitimate
reason for enforcing noncompetes, as we have seen, is their supposed
tendency to encourage employer investment in training and
information — investment that, supposedly, will never take place
if employees are free to depart. If there is anything to this scenario,
it is outweighed by its opposite. “[N]ot only does the enforcement
of non-compete agreements limit entrepreneurship … but also it
appears to impede innovation.”

"...the waste of human capital is enormous.

"The unanimity of the early studies of noncompetes is striking.
Using different data sets and methodologies, none have
found any social advantage in enforcing noncompetes. Enforcing
covenants not to compete reduces employee mobility, start-ups,
venture capital, patenting, employee compensation, and growth.
Enforcement harms employees (considerably), regions, and, in
most cases, the enforcing firm itself. It has no economic function
except to raise rivals’ costs and decrease competition for consumers.
There is, therefore, no more reason to enforce an employee’s
promise not to compete than any analogous agreement in which
producers agree to limit competition."


In short, it initially seemed like a Clever Plan to the suits in charge, but they are actually shooting themselves in the foot, and society at large as well. According to the research, anyhow.

 

So, sudden big meeting for the entire place
The story goes, some former employee shredded many folks' files
therefore EVERYONE has to sign this agreement.
Well, not you management guys...
Here's your form, sign it by Monday or be let go.

uh huh, right