But then you have to deal with a lawsuit, hire a lawyer, etc. Just because it's unenforceable doesn't mean that your shitty employer can't sue you. Why not just head it off at the beginning and have it right there in the signed contract?
Since it's a contract, it's often unenforceable unless there is some kind of consideration. I believe in most states, if an employer asks you to sign a non-complete after you start work, it's unenforceable.
yeah. i’m pretty sure stuff like this is completely unenforceable. this sounds like being forced to sign it so you can easily make the argument that you signed it because you had no other choice and you were threatened with termination.
It is the UK. I know that probably in some jurisdictions some of these clauses are unenforceable. I just don't want to step in a legal mess. I know a friend of mine (in France btw) had to argue with his company about this even though he obtained a verbal agreement beforehand. It is just that he was about to quit and the employer decided to fuck with him as much as possible.
There need to be penalties for knowingly putting unenforceable terms in employment contracts. Too many companies subvert the law by putting unenforceable terms in their contracts and knowing that most employees will not realize that the terms are unenforceable and that most of the rest will be too afraid of being sued to break the contract even if they know that they would eventually win in court.
There should be a bullshit tax for having employees sign agreements the company knows aren't enforceable.
I was working at a place for 4 years before they tried to get me to sign one. They said it was standard and wasn't enforceable anyways, and I pushed my point (why bother having me sign if its pointless) and they eventually dropped it. No agreement is better than potentially having to deal with an unenforceable one down the road.
(1) Sign the ridiculous agreement, knowing it is completely unenforceable, and plan to completely ignore it when you leave. If you consider this strategy, you MUST consult with a lawyer to confirm that it is unenforceable, and you MUST be willing to pay a lawyer after you leave to deal with the nasty letter they may send you and your next employer. Ask the lawyer how much that might cost, and build it into your compensation expectations. Also, be aware that even if you know it is unenforceable, the nasty letter may scare your next employer into revoking your offer, so be prepared to be upfront about your situation with the next employer, and consequently to expect it to take longer to find the next job. Build that into your compensation expectations for this job as well.
(2) Negotiate an agreement you're actually willing to follow to the letter. Personally, I wouldn't agree to anything that doesn't compensate me for time sitting out, and I wouldn't care much what the restrictions are during the time period. I would be looking for at least 75% of total comp for periods up to 3 months, 100% of total comp for periods up to 6 months, and 120% of total comp for periods longer than 6 months.
IMO option 2 is the far better choice, if at all possible. Two factors would make me consider option 1. If the company is a large or inflexible organization, where you can't negotiate with a person who actually has the power to change the agreement, option 2 might not be realistic. Second, you should try to find out if the company actually has a habit of sending nasty letters to people who leave. If they actually do that, then I would guess they already know that it's unenforceable, but don't care because it's still an effective way of bullying people. I would take this as evidence that they would not be amenable to negotiating the non-compete, and go with option 1.
In this case it is a company policy, not a legal matter. Even if you signed a contract the contract has to be legal and valid under the state & federal laws governing it, the company and the person/people involved. Many companies put clauses in contracts which they know are unenforceable because lay people won't know the difference and are just fearful of being sued, hell many attorney's don't know.
The companies recourse here is to terminate you for violating company policy, which could open them up to a wrongful termination suit for trying to enforce a policy that may or may not be legal in that state. The company suing the person in this case has no value nor any outcome where it is a net positive for the company, and the company knows that and they just hope you don't.
Yeah I brought an employment contract to a lawyer once and they told me to sign it because most of it had been written with references to the laws of a different state (the company had moved HQ recently), making most of it unenforceable.
I've actually tried that cute "Strike out clauses from your employment agreement you don't like and sign THAT document" tactic with several past employers, and each of them pulled me aside my first or second day of work and gave me a stern and clear "Sign it unmodified or GTFO" talk. In my experience nothing in an employment contract is in any way negotiable. I don't even bother anymore--it's futile.
An obvious example in the U.S. is that even if you have a contract saying you have to work for someone for no pay, forever, with no possibility of getting out the contract, it would be unenforceable because we, as a nation, have decided that slavery should not be legal.
It turns out, many of these un-contractable issues involve the employer/employee relationship... another example: even if you sign a contract saying your employer doesn't have to pay you overtime, that provision would be thrown out if you challenged it, and would probably get the employer in trouble with various agencies, including the IRS.
I am a lawyer, but I don't have experience in this field, and this is not legal advice (you have to hire me for that), but this issue seems like one that a court (depending on the state, no doubt) would find that it doesn't matter what the contract says, an employer can't own everything an employee does.
To emphasize: this is NOT legal advice, don't rely on it, and you really should seek counsel if you are encountering this issue in real life.
It's better to politely request that the "undesirable" (ie: illegal) clauses be removed from the contract, rather than using red ink on the contract you were sent and submitting it as an ultimatum. Either way, you wouldn't work for them unless the changes are made. The result is the same; it's all about how you approach the matter - namely, with diplomatic tact. You give the company a chance to amend the contract in your favour on their end, rather than attempting - and possibly failing - to force their hand with a revised contract on your end.
You might be in a region where such clauses are not enforceable, but if you say "hell no that's illegal!", they'll trash your résumé and hire someone else who doesn't make such a fuss. The person who winds up being hired was just a "better match" and the "position was filled". You could always sign a contract with "unenforceable" clauses without complaining, and hope the law ultimately agrees with you... but do you really want to take the risk of falling on the wrong side of the law?
Put it this way: if you strike out the contract with red ink, here is what the employer sees: "Fuck you, you can't fucking give me fucking clauses like that. It's fucking illegal, so I have fucking stricken out that fucking bullshit clause 2.1, and you had better fucking accept me as a fucking employee anyway, you fucking pieces of fucking shit! Accept the fucking contract I have sent you with fucking red ink, and fucking hire me already!".
Versus: "Section 2.1 would prevent me from seeking employment upon leaving your company. That clause is not legally enforceable, so it would be better for both of us that I not sign this. I will sign a contract with provisions that I will not poach your clients or work for a direct competitor in your field for a period of X time. If you could please revise the contract, I will sign it and you will have me as your newest employee!"
So what if you calmly request these changes be made, and the company refuses to make the amendments to your contract? Of course you refuse to work for them. Maybe even sue for their illegal practices if you can afford the legal fees. The idea is not to accept unacceptable contractual terms. The point is to allow the company to believe they are accommodating your polite requests, rather than you having made non-negotiable demands as an ultimatum. It's a mind game that gives the illusion that the company is is control, while you hold all the cards.
The end result is the same. Either you will accept the contract or you won't. You're just being diplomatic, attempting to elicit a reaction from the employer that is in your favour, rather than making the scenario a one-sided "my way or the highway". Let the company believe they are obliging you instead of crumbling under pressure.
I'd recommend you talk to a lawyer that is familiar with employment contract law in your area. My experience has been that companies will put unenforcable restrictions in contracts because they know 99% of people will never check if the restriction can be enforced. It doesn't cost the company anything to add the clause but they benifit from it anyway.
Apologies, I never thought you were disingenuous, it's just a busy time of year :)
In that circumstance, if both parties are still happy with the terms they would presumably sign a new contract minus the unenforceable terms.
If the company opts not to create a new contract, I would say it counts as firing the person without cause.
It is an interesting question though, especially as it pertains to future incentives. Something like the person having earned a bonus that hasn't been paid out yet, the contract is found invalid so the bonus part is scratched out.
Perhaps the individual deserves a choice in that case, whether to proceed without a contract or under the terms minus the unenforceable parts, or maybe something more punitive to the company like the individual keeping any rights they got and the company losing theirs.
I still think it's a workable idea, but you do raise an interesting point that's probably worth adjusting my idea around.
Oh, I totally agree it's an empty threat, but many workers don't know that.
It's kind of fucked up though that putting something obviously unenforceable in a hiring contract isn't being punished. Either the worker ignores it, knowing there's nothing the company can do, or they take it seriously and are afraid to quit to go to a competitor. It's pretty much no lose for the company though.
There are a lot of things like this. Companies write all sorts of non-enforceable terms into contracts all of the time. That's why people should consult an employment lawyer when you start and end a job. Paying a few hundred dollars for a consult/review is worth knowing your rights.
Having it written into the contract would probably make it easier to collect unemployment if you quit before they fired you for non-compliance? I think a major change like that is already a fairly easy case of constructive dismissal though.
Otherwise yeah, there's not going to be much recourse unless specific penalties were also written into the contract.
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