Non-Compete Clause

[Duane Thomas]

Sounds like a blessing in disguise to me. Who wants to continue working for people so lame anyway?

[open17]

They have (had) 10 employees, are driving it into the ground and just lost 40% of their workforce? Time to start

gathering resources, wait for the bankruptcy auction, and go into the HVAC business!

Heck--might be time anyway. Sounds like it wouldn't take a lot to pull some business away from the idiots.

[Duane Thomas]

Opportunity disguised as adversity.

[MT_Bear]

I'm not a lawyer either - However, I have had a bunch of dealings with non-compete clauses in Disneyland (Washington, DC area). The only ones that were enforceable there were ones where companies had development or research employees. In those cases, the non-compete clauses were there to prevent trade secrets from being disclosed to competing developers.

Even in high tech areas, such as network management and server management, the non-compete clauses were deemed unenforceable, since they only served to prevent employees from moving between companies, and did not involve proprietary information protection.

As everyone else has said, consulting a local lawyer could pre-empt a lot of trouble.

[mpeltier]

I think your Dad should have signed it. After 20 yrs he is not likely to find a job near his current salary level unless he is very fortunate. If he stayed until they go under the contract would then heve no meaning.

I think that company got exactly what they hoped for, higher payed veteran employees refusing (to sign) because they recognize the decline of the company and they make an emotional decision not to sighn. Gives the company a nod to terminate and hire lower priced new blood who do not yet realize the decline. I do not think this was an attempt at all to protect intelectual property (trade secrets) or truley prevent competition.

[Jim Norman]

In my experience a Non-Compete Clause is usually put in place to keep management, specialist, or sales people from being able to set-up in the same service area. Again, my understanding is that they are not generally enforceable against a mechanic. Also this was not a term of employment at the time of hire. Again this makes it less likely to be enforceable.

You might want to get a really good employment lawyer to look at this, you might even have an action against the company for wrongful termination.

Jim

[nwb01]

Opportunity disguised as adversity.

EXACTLY !!

I think your Dad should have signed it. After 20 yrs he is not likely to find a job near his current salary level unless he is very fortunate. If he stayed until they go under the contract would then heve no meaning.

I think that company got exactly what they hoped for, higher payed veteran employees refusing (to sign) because they recognize the decline of the company and they make an emotional decision not to sighn. Gives the company a nod to terminate and hire lower priced new blood who do not yet realize the decline. I do not think this was an attempt at all to protect intelectual property (trade secrets) or truley prevent competition.

My dad believes this is what they wanted to happen. Appears they have also rehired a couple of guys that were let go awhile back.

In my experience a Non-Compete Clause is usually put in place to keep management, specialist, or sales people from being able to set-up in the same service area. Again, my understanding is that they are not generally enforceable against a mechanic. Also this was not a term of employment at the time of hire. Again this makes it less likely to be enforceable.

You might want to get a really good employment lawyer to look at this, you might even have an action against the company for wrongful termination.

Jim

My Dad is talking to a lawyer today to see the legallity of how this was introduced as well as the way it was written. The clause does not state a geographic area which seems to be required.

We had a long talk last night, he is done with them and that he will take any legal action that he can against them, family or not. The gloves are off, steps are being taken to ensure the demise of a company he help make successful. When have relationships, both business and personal with customers, it won't be hard to steer their business elsewhere !

If I hear anything today I will post.

Thanks for the info guys !!

Nick

[STIGUY]

Really not the same situation, but I was negotiating a compensation agreement through a independent recruiter in Texas ane the employer wanted me to sign as a condition of employent. It was really rediculous in that it stated that anybody that I discussed business with...etc in this position, I could not use that person as a contact. I am not/was not in business development......I passed.

Seems like coming in and making a condition of continued employment seems very harsh. Even in these tough economic times....if push came to shove....it probably would come down to who has the better attorney?

[Rob Boudrie]

My Dad is talking to a lawyer today to see the legallity of how this was introduced as well as the way it was written.

His first mistake was not telling the employer "give me a copy, I need to go over this with my attorney".

The courts are generally not amused by attempts to pressure the other party into signing without a reasonable opportunity to have their own legal review done - so he would have either (a) obtained advice before making the sign/no sign decision, or (B ) given the other side the chance to dig themselves a hole.

Whenever my employer asks an employee to sign anything, they always give the employee time to consult with his/her own legal counsel if (s)he so desires.

[twodownzero]

You might want to get a really good employment lawyer to look at this, you might even have an action against the company for wrongful termination.

Good luck to that. Most wrongful termination complaints wouldn't survive a motion to dismiss.

Move on and find another job.

[davidwiz]

Good luck to that. Most wrongful termination complaints wouldn't survive a motion to dismiss.

Move on and find another job.

Not that I have found. It really depends on the type of complaint being brought (I'm assuming your taking about complaints brought in federal court). Yes, there are attorneys out there who have no business doing plaintiff employment discrimination work, but I don't think that your sweeping generalization is accurate. If this is you, then I have no idea where you get your information or how you support your statement.

Edited January 7, 2010 by davidwiz

[warpspeed]

I've been through this a number of times.

In my position, it is usually done to deter a competitor from poaching. In CA, they are largely unenforceable but usually viewed as baggage that a new employer does not want to take on.

I was in the exact same position as the OP's dad. I was a current employee and the new GM wanted everyone to sign. It was comical. He said I could not work there unless I signed it. I said " but I do work here. I was here before you got here, remember ?" This circular argument went on for several minutes. I walked out. Went to a competitor next day. When they found out I got all kinds of letters from their attorney. Eventually it all went away. They got tired of spending money on the lawyer I think.

I often wondered if what they did was legal but since I got a job, I figured I had no damages so there would not be anything to sue for. I moved on.

[twodownzero]

Good luck to that. Most wrongful termination complaints wouldn't survive a motion to dismiss.

Move on and find another job.

Not that I have found. It really depends on the type of complaint being brought (I'm assuming your taking about complaints brought in federal court). Yes, there are attorneys out there who have no business doing plaintiff employment discrimination work, but I don't think that your sweeping generalization is accurate. If this is you, then I have no idea where you get your information or how you support your statement.

Employment discrimination is an entirely different topic than claiming your client was illegally dismissed from at will employment. In fact, it's just about the only exception.

The standard for a motion to dismiss is that if all the factual claims made in the complaint were true, the moving party is not entitled to any relief. In an employment at will scenario, unless there exists a statutory exception from the doctrine, the "rule" is no relief.

There certainly are fact patterns in which a lawsuit brought against a former employer for wrongful dismissal could survive, go to trial, etc. Those cases are the exception....employment at will is the rule.

Should be common sense to you as to what backs my statement. If not, feel free to PM me with more specific questions.