Prepare to be shocked: Employees hate this One Weird Clause As PayPal and NetApp join the latest tech multinationals shedding a portion of their staffers, the US Federal Trade Commission is proposing a local ban on non-competes. America's federal regulator has concerns about the unequal bargaining power between employers and workers, claiming that non-compete clauses limit a worker's …
If you don't want me to work for the competition, don't fire me.
If you don't want me to work for the competition, pay me better than they can offer.
If you don't want me to work for you and anyone else, pay me as if I worked for you or for anyone else.
These three simple rules employers would hate.
Most employees are theoretically replaceable - skilled ones take months to hire, then months to learn your stack, before they can become nearly as productive as the previous guy, even assuming you haven't hired a lemon which absolutely does happen. And they still won't have the years of experience of both how the systems and the company works. Employees can't be swapped in and out like lego bricks and if you think so you are the epitome of a terrible manager.
Well, yes, buuuuuut, you try telling HR that when there are 200 technical vacancies and 200 'spare' admin and sales people 'on the bench.'
Isn't 'spare' what any British person would be if they were in this position?
British, informal. : to become very angry or upset. My dad went spare when he found out what I'd done.
I wonder if anyone has done any sort of analysis on the costs of say a developer leaving and hiring a new one because I'd wager that the cost of hiring someone new would be more than that of giving the original developer higher wages (assuming that's their reason for leaving of course), by the time you've factored in writing a job ad, posting on various places, reading CV's, interviewing etc.. added to that the amount of time the new hireling is going to take getting up to speed, and any finders fees from an agent, its got to be more expensive than the pay rise.
My University was partly run by crooks, posting Anon for obvious reasons. There was the student accepted into a Hall of Residence part way through the semester, where they asked him to pay the full years deposit. The accommodation contract we all signed stated that we had to be registered on a valid course with the university to keep your room. If you were kicked off your course the non refundable deposit was unsurprisingly non refundable as a result of not having a course to attend.
Now our new inmate hadn’t been told but before he’d signed the contract the university had already (but not communicated to the student) rejected the student from that years course. They said belatedly in a letter this was because they didn’t have enough credits to transfer to the course. So they were therefore going to be evicted from their room and lose their years deposit.
After the Student Union got on the case this was reversed and they got the student their deposit back and a place on the next year’s course. Much later on two people at the very top were done for serious embezzlement and another was suspended without pay.
Although working in the UK and resident in the UK, you agree to be bound by the laws of Texas... In the event of any proceedings against you, you must lodge a bond of 10000 US dollars with a court in Dallas within 48 hours.
That would count as utterly enforceable in a contract of employment in the UK. You cannot sign away your rights under law - fundamental principal. Any employment case that came up over a contract with that in it isn't going to go well for the company...
The tricky thing is that, though courts around the world are supposed to take account of each other's rulings, US courts can, well, be a law unto themselves...
One contract I was offered had two clauses that I did not like:
First, I had to sign away my rights under the working time directive of the EU, which protects staff from having to work excessive hours for 13 weeks.
Second, I had to accept that were I to be detained under section 7 of the Mental Health Act, I could be summarily dismissed without compensation.
So, basically they wanted to be able to work me to insanity and then chuck me out.
To be fair working for the government means your bosses (the politicians) are bad. But they are only bad because the people on whom they rely -- the voters -- are insane. Want an example? Brexit.
[I added the last bit because even after three years of irrefutable evidence of the disaster that is Brexit there are some here who refuse to see that. How many? Count the down votes.]
You know you can just buy them online right (though if you want the top of the line ones they cost a fair chunk)?
Though I've been old getting strapped into one by force, against your will by uncaring nurses as you're having a mental crisis isn't exactly a pleasant experience and vastly different from doing it in a kink scenario where you're a willing participant.
I've always wanted a jacket with wrap-around sleeves.
A quick search shows they're readily available, but given that they all seem to be made of leather, rubber or PVC, and the nature of the "customers who bought this also bought" items, it's obviously a market catering to certain specialised tastes.
AFAIK the one of the few things in UK employment law you cannot opt out of, voluntarily or otherwise, is taking a mandatory break of at least 20 minutes for every 6 hours of work. You are actually forbidden by law from not taking a break.
Employees in the EU can 'voluntarily' opt out of the working time directive, but can opt back in again later. The issue I had was if the clause was in my contract of employment could I opt back in or not? And obviously in the first year of employment, trying to opt back in could perhaps be construed as resignation. Shame too as it would have meant a pay rise of about £8k per annum.
"The issue I had was if the clause was in my contract of employment could I opt back in or not?"
It's not enforceable as part of a contract of employment and as such should not appear in the contract*. You cannot be required to opt out or prevented from opting back in*. Any such attempt is invalid and unactionable under the statute*.
However, that won't stop employers from trying... and for finding other reasons to fire you if you don't comply. In Tribunal, however, the fact they've put the clause in indicates they're acting in bad faith in the contract and that will be counted against them when considering the case. It can be enough to sway an 'iffy' case into the employee's favor, including claims of unfair dismissal when there's little evidence: That clause can be the evidence.
*This is what we were told by my old HR department after our director tried this on us. Obviously I am not a lawyer and this is not legal advice - best talk to a solicitor if you want legal advice on this.
AFAIK the one of the few things in UK employment law you cannot opt out of, voluntarily or otherwise, is taking a mandatory break of at least 20 minutes for every 6 hours of work. You are actually forbidden by law from not taking a break.
Fortunately Conservative government thought of that and now corporation can hire workers through IR35 and all these rules no longer apply. Workers don't get any rights. None.
Even more cynical is the fact that then in the eye of the law worker is their own employer, so if they are not happy about not taking breaks, they can take themselves to employment tribunal and obviously it is going to be their own fault in the first place for taking such and such job.
Most importantly though - the deemed employer is in the clear, always!
They don't even have to pay a minimum wage or care about equal pay anymore.
"how many hours a week did you work?"
<Best 'Jim Hacker' voice from 'Yes, Minister'>
I am glad you asked me that question because it is an important question, and one to which many people would like, and indeed deserve to know the answer. The concept of working hours is one which is prevalent in the business world and, indeed is the subject of much debate by managers, employees, manager organisations like the CBI, IoD, and, of course trades unions, and, indeed the government and many, many 'think tanks' on both the left and right of the political spectrum, and indeed in the middle. Also, of course one must take into account the concept of 'working'. What is meant by 'work', does it have to be productive, or can it be merely doing what your manager told you to do. Maybe some consider that merely turning up 'for work' and sitting at a desk while awaiting instruction constitutes 'work', your time, is after all, being used by your employer and it may not be your fault that you are not actually doing anything fro their benefit. Indeed, in the early movie industry I understand that some actors and actresses were hired at a low rate not to be employed in make movies, but so that the competing 'movie makers' could not use them in their films.
Oh, you wanted to know how many hours I actually worked? I have no idea.
I had this when I was working in the NHS: The director of IT at the hospital wanted us all to opt-out if we wanted to keep our jobs.
My boss told us not to sign anything: We couldn't be forced top opt out and we had a strict anti-harassment policy that applied to threats to our jobs. This was referred to HR and was confirmed that the director had been taken aside and given a stern talking to. No, we did not have to opt out, and no, our jobs were not at risk.
The WTD is quite literally a set of workers rights.
You can voluntarily agree to work slightly longer hours, but even if you do there's still an upper limit and rights to breaks during shifts and a certain amount of continuous break between shifts.
You can also withdraw your "opt out" at any time, and the employer is not permitted to sanction or threaten you about it. Although it obviously means less (or no) overtime.
That's what "voluntarily" means.
It's almost certainly one of the regulations Rees-Mogg wants to toss on the bonfire via his incredibly badly written bill. "Accidentally", of course.
The first clause would be unenforceable - you cannot sign away rights
And if you were sacked for refusing to sign, it would be automatic unfair dismissal
Investment banks handled this by putting your opt-out as part of the signing of your contract of employment. You choose not to sign then you don't have a contract of employment. Done.
A well meaning employer that wanted to avoid defection to the nearest competitor. But the clause was worded so broadly it could be interpreted as "you can't work in IT for 2 years after you leave".
They of course said it was not meant so broad, and I countered as "why do you don't exactly write down what you mean then". And so it happened, narrowed down to competitors in the exact same sub field of a sub field of IT.
I'm absolutely convinced there was no malicious intent, but you never know what is going to happen, and who they sell their business to at some point.
In a different context, I was once pulled into a programme in $BIG_COMPANY for which I was asked to sign an NDA. The genius who had drawn up the NDA (the PM) had basically stated 'you don't talk to anyone about this, except to the programme manager and his PMO team'. I refused to sign as I had to talk to others in the organisation to get all the data I needed. Said PM also waved my concern away saying it was just a poor choice of words. As $BIG_COMPANY was enjoying itself with major sacking rounfs, I didn't take the bait and told him to reword it properly then. He never did, and I never signed.
I did a big data migration project for a Government Dept. Contract said I wasnt allowed to view the top-secret, high level data - earth will implode, upon threat of arrest and execution data, instant dismissal yadda yadda yadda
The job spec included testing and verifying that data was correct
In the UK there's this fun gotcha of the Official Secrets Act: people think if they don't sign the acknowledgement it doesn't apply, which is wrong. It always applies, the only reason they get you to sign is so that they have an acknowledgement that you know about your obligations under the OSA..
The second time I was asked to sign the OSA(*) I pointed out that I'd already done so and it applied anyway. They just laughed and said something like "it's so you can't quibble if you break it, so just sign". It's no big deal, the repeated security briefings were more tedious.
(*) I've signed 4 or 5 times in total. Lost count.
Not quite, it's published law so already public.
This reminds me of a trick I was taught by a general: briefing politicians. As politicians are rarely cleared to a sensible level (for reasons I probably don't have to explain here), briefing them is sometimes hard as you have to keep what is confidential away from them. The trick is to use what has already appeared in the press, which is thus defined as public, and there's a surprising lot of it. It's now a lot easier with search engines too, and doing this ensures you can prove you remained on the right side of the line when you briefed someone.
"The trick is to use what has already appeared in the press, which is thus defined as public, "
That's dangerously wrong. The security classification of information does not change just because it was made public (which could have well been by a leak instead of a proper declassification), and forwarding protected information to persons without the necessary clearance and need to know is still an offence even when the same person could have just read it in the Guardian.
This could well become a career-hampering mistake.
That's not the point - this is about where data was sourced from. It is not illegal to put something in front of someone that has appeared in the press, even if that was the result of a leak - you are sourcing from a public medium.
If you were to take that data from the actual source that was leaked, then you'd be handing protectively marked material to someome without the required clearance which would be Very Bad™ indeed. That said, I would agree with you that quoting from articles based on leaked information would not be a good move because you're more or less benefitting from a crime, and it could lead to the suspicion that you were somehow involved in the act. That's just not a good look for someone dealing with secrets..
Everyone is bound by the Official Secrets Act - it's a law, not a company policy... The only reason why certain occupations require you to sign the Act's certificate is so that, later, you cannot claim ignorance in mitigation of sentencing if you've been convicted of breaking it.
In theory, a member of the public wilfully ignoring all sorts of officlal admonishments concerning disclosure on the front of a classified document they've found on a train is breaking the law if they, say, sold it to the Sun newspaper instead of handing it in at a police station. In practice, I think that a "not in the public interest" view is taken i such cases, but the silly idiot who'd left it on the train is in for a lot of trouble...
Norway's National Security Act (Lov om nasjonal sikkerhet) stipulates that if you do work to ensure that your services or systems are in accordance with said Act, you are not allowed to talk about it.
Not with colleagues you are not directly collaborating with on that particular work; not even your manager. Your manager can of course assign you the work to be done, but you can't give any updates on how work is progressing. (Wally from Dilbert would have a field day.) How do you solve this? Well, naturally, hire external consultants to perform the audit!
Don't ask me how I know this. Since, obviously, I don't perform any work related to this.
People need to understand that when company says "oh we don't mean it that way, it's just a standard clause, don't worry we are not going to use it, it's just what our legal team wants us to have" - then they will absolutely going to use it when push comes to shove.
I learned this the hard way.
If you don't like something in the contract - it can always be changed or let the company find a fool they are looking for.
If you don't like something in the contract - it can always be changed
Also you can change something you do like. The last contract offered to me I suggested changing because TPTB had put my name in the employer's field and vice versa! I really did wonder what would have happened if I hadn't pointed that out before signing, I was dreaming about sacking a multi-national ;)
In UK contract law ambiguities in clauses by default favour the party that did not write the contract.
But a malignant company can bugger you about badly until that's decided, which can be pretty intimidating. (I speak from personal experience. Fortunately that hive of scum and villainy had overreached themselves commercially and crashed and burned a few months later, to the glee of those of us being hassled.)
There's a big difference between leaving a company to join a competitor and being made redundant and looking for work in the same field. When I was made redundant I went freelance (because I was too old in my 40's to be considered as employable!) and approached some of the customers of the old employer to do the same work for them as I was doing before, and got the contract from one as they knew me. Not long after I received an email from the MD of the ex-employer suggesting that I was in breach of contract by approaching their customers. I emailed back saying that I no longer had a contract with them as they no longer employed me, so bugger off - or words to that effect. That was the last I heard from them. A couple of years later they had gone bust, especially as many of the staff who remained decided it wasn't a place they wanted to work at any more.
There was a no compete clause in my contract for a company I worked for. When they made me redundant (I'd had a bit of a 'falling out' with one of the owners) the admin lady insisted that the clause was not enforceable and I should not worry about it. Which was a shame as it said that I could not work for any of their customers for a year after leaving. I was going to insist on a complete list of their customers, and compensation for a year of not being able to work. As It happened I got three month's paid 'gardening leave'* and a better paid job elsewhere afterwards.
*I live in a first floor flat / apartment, with a tiny balcony and a small aspidistra, which despite my ministrations is still almost completely green and healthy.
I emailed back saying that I no longer had a contract with them as they no longer employed me, so bugger off - or words to that effect.
This is the bit I don't understand. How are these clauses enforcable?
If I work for you you pay me and I'm bound by the terms of the empoyment contract.
Once I leave though, that contract is terminated, you stop paying me, I stop doing work for you.
How do only parts of it then become enforceable? Or is it just that they assume people won't kick up a fuss? I get the wording will be phrased in such a way as to imply perpetuity, but if the overall contract is now void why can people pick and choose?
(I can also see how a fixed term contractors contract may be different, but employment contracts are open ended).
It is generally accepted that client confidentiality clauses, aka specific non-disclosure agreements, survive your term of employment. So you cannot work for a company, learn about their clients and then leave the company and divulge the clients' secrets. So do things like duty of care and not revealing information subject to data protection legislation that your learnt about people through the course of your work.
The contract will specify this explicitly. The legal language will boil down to "This part is about what you have to do while you're employed, and this part is about what you have to do while you're employed and afterward". They'll put in a sentence making it clear that the contract doesn't just end when you quit or are fired. This is quite normal, and some clauses of that nature are enforceable.
A contract is a detailed agreement, and there can be perpetual clauses or clauses that extend past the end date of other clauses. Don't assume that quitting automatically voids the contract.
How are these clauses enforcable?
It is entirely possible to put a clause in stating that it survives ending of employment. So as long as it states that "this clause will survive termination of employment fo [some time period]" then I believe it's valid (subject to other laws that limit what you can include).
So, for example, it is not unreasonable to say that company information (such as customer lists or plans for new products) is proprietary and cannot be shared with anyone, especially a new employer. And it's reasonable to add this the clause survives ending of employment. But there are limits.
Any clause would have to be reasonable - something which would vary depending on your position and the business. While (say) 12 months might be reasonable for a senior exec or manager with intimate knowledge of how the business runs, it would probably be rules unreasonable (and therefore unenforceable) if applied to some low level person with little such knowledge.
Also, I believe while it is reasonable to say that a person cannot take any company information with them (e.g. documents), no clause can stop them taking what is in their head. So while someone would not be allowed to take a nice detailed file listing all the clients, contacts, phone numbers, etc. - if they can remember that Fred from Acme was always a good customer, that can't reasonably be blocked.
As it happens, a friend and ex-colleague of mine recently moved after his previous employer got too far down the road of being a complete PITA. And he did ask me about some of the clauses in his contract - which I considered to be unlawful (previous employer run by one of those types who thinks he knows the law, but was ... rather thick in that respect). He did tell his clients that he was leaving, but did not tell any of them where he was going - that would have been naughty. But as a) he had a small list of clients, b) he was on first name terms and often socialised with some of them, and c) they were only clients of the company to buy my friends services (and which the company had no replacement for) - it didn't take long for them all to stop being clients of the old employer, and some of them became clients of his new employer by their own initiative.
>It is entirely possible to put a clause in stating that it survives ending of employment.
My first job had one of those clauses, basically they reserved the right to recall you if the system you had worked on suffered a class A failure (system failed, trains crashed and people died) for up to 10 years after termination of employment.
Not sure how enforceable it was, but just like signing the official secrets act, it reminded you that actions had consequences.
A company I worked for tried to get everyone to e-sign non-compete agreements prior to a round of layoffs! Besides getting into retrospective changes in Terms and Conditions, they tried to bind identity to the e-sig by requesting a credit card number. Basic investigation showed that this was just being validated by the correct number of digits and, I suspect a ROT-13 check. I e-signed as Michael M Mouse. Apparently, it annoyed them as the name kept being listed in the management reports —nothing like taking the Mickey out of daft methods.
There's a specific check digit like system for credit cards. It verifies that the number could be a credit card number, but unless they also successfully transact with it, nothing has been verified. (As that company clearly found out) It helps avoid simple miskeying mistakes, but was never meant to prove anything else.
I was presented with a contract with one of these 'non-compete' clauses, I had a law dude look it over, and he said unless you want to flip pizzas for two year after leaving, don't sign... I didn't! But he also said, that because of the poor way the contract was written, it probably wasn't enforceable.
I worked in the Netherlands as well, and we had to sign similar things so that the company would pay for our certification training. I believe the clause stated that you were on the hook for the cost of the training (course, travel, lodging, certification) for 24 months after taking it, with the penalty percentage being reduced every six months or something. To my knowledge, it was never enforced; and we had plenty of newly certified colleagues being poached by competitors.
By attending this training you agree to reimburse the company if you leave:
100% of course cost if you leave within 6 months of completion.
50% of cost if you leave within 9 months of completion.
25% of cost if you leave within 12 months of completion.
That box remained unticked!
I had a similar experience, my company at the time wanted to send me on a training course, so they could move me to another project. I said fine. And they said it will cost you €5000 to do the course. I said "Not a chance in hell am I paying for the course. You want me to do the course, you pay. Alternatively, I will happily pay for the course when you up my pay by €5k a year. New contract to be signed beforehand, of course."
They grumbled, but paid for the course, as they needed me on that other project. But it left a very sour taste in my mouth and I ended up leaving the company as soon as that project ended (a little more than a year after the course was completed).
I've never understood why companies do that sort of thing. If you have a business need, then you're paying. You dont make people pay for the computers they use to do their work, why would you even consider making them pay for the training they need, to do the work you want them to do. Alternatively, if you dont want to pay for it, go and find a new employee who already has the skills, but I think you'll be surprised about just how expensive that is...
"I've never understood why companies do that sort of thing."
Umm, I don't want to sound condescending or anything, but have you read the comment threads on the Register's articles much? Some people are complete sphincters and mean as hell.
One company I worked for wanted to get a Queen's award for 'investing in people' as a sort of kudos thing, until they discovered that they would actually have to 'invest in their people'.
d'Oh icon entirely appropriate.
Back in 1997/8 my then employer gained the Investor in People award...
...without investing a penny in the people
Provided one had processes, training plans, procedures, staff reviews, etc, it was possible to achieve IIP without actually investing in staff.
Sema Group. Can name and shame as they no longer exist.
I don't think that my employer even wanted to go to the effort of creating training plans or procedures. Staff reviews, as I recall, were basically about rewarding their favourites and attempting to manage the ones they disliked out of the company.
Of course, I am a biased reporter as having been subject to a staff discipline procedure where half the alleged complaints were things the client had asked me to do, and the rest were false. The one true internal complaint was that for a whole week my 'resource manager' had not known what I was doing. It seems that this was my fault as clearly he was far too important to ask me. The letter of complaint named a client contact as the complainant, but when asked, the manager admitted that he had not received any letter, email or even a phone call of complaint, and the list he gave me was not even marked "Personal". After that our relationship was somewhat less than ideal.
> Alternatively, if you dont want to pay for it, go and find a new employee who already has the skills, but I think you'll be surprised about just how expensive that is...
Here in the US, that seems to be the rule, though, when going about hiring new IT employees. The hiring managers all seem to want someone *else* to have previously paid for the specific technical skill they're looking for. I've sat in interviews where the manager checked things off on a clipboard whether or not you had a particular skill in your background. And when they can't find a candidate who has all of the 2-3 dozen skills they want in a new hire, they bitch and moan in the press how they can't find suitable candidates.
"I've never understood why companies do that sort of thing. "
It's a silly attempt to stop people signing up for all the training they can get, to make them much more employable elsewhere, then leaving for a higher paid job.
Silly because any new employer is going to note that said applicant has just done all this training (as the date of completion is rather recent) and think 'and if I offer them more training...' then decide they either won't invest any more into the employee (at least until they've gotten their money's worth - so 3 years minimum), or they won't hire them in the first place.
Yes, had the same clause in my contract - fully crossed out, which apparently they missed until someone was reviewing contracts and saw all the redacted lines... boy was that a 'fun' interview... and >they< had accepted the amended contract so lacked even the stump of a leg to stand on...
Many moons ago, a previous employer was paying through the nose for some Messaging Queue platform. They also paid through the nose for a contractor or two.
When we got to planning the training budget, we immediately suggested that the budget should also include training for the platform in question. The cost of training would have been dwarfed by the cost incurred of external contractors.
Without a hint of a smile, the line manager said to all of us
'We won't be training you on the platform, because you'll leave and go contracting'.
Now, this was fair to a point because there was a dearth of UK-based knowledge in the platform, but it had the opposite effect to what they intended. Quite promptly all techies interested in being trained submitted resignations.
That wasn't because we were hanging our hats on being trained in the platform, it was because the company effectively made it clear they didn't want to invest in the staff.
The customer of my ex-employer that I took on (see earlier post) had a no-training policy. They wouldn't invest in their own staff in case they left once their new skills had been acquired. They were happy to pay for expensive contractors to cover the skills gap though. I never did fully understand their logic, even though I benefited from it.
> employer can require that you work on your own equipment.
I always did. And in some trades it is just expected.
Auto mechanics usually bring their own hand-tools, though the lift and Sun machine are owned by the shop.
Court reporters owned their own Stenotypes. (Past tense cuz most juridictions have gone over to poor audio recordings.)
As an electronics technician, the school had a oscilloscope (it looked cool in the course catalog) but I brought my own nippers and soldering tools.
I see the local yacht shop has the same policy for their radio/radar installers. Cable TV part-timers too. If you don't have tools you can't be much of a technician.
In my IT phase, sometimes I misappropriated slightly older PCs, but at some point I got fed-up with cast-offs and just bought/brought my own. (And took some of it away when I left.)
Agreed - to a point.
But when it comes to your "work" PC, you either come down to "provide your own" in which case the employer has little say in what software you run on it or how it's configured (no, no scope for security or confidentiality problems there), or the employer provides it (and pays for it). I'd accept either - in the past I've used my own laptop simply because it's been easier for me, but I've also worked where the network is locked down tighter than a duck's backside and using the employer's equipment is the only option.
Where I'd draw the line would be any permutation of "you pay for it, we own it" or "you buy it, we say what you can do with it". Such a request would get a quite firm negative response, the jist of which would be "you want control, you pay - else FRO".
>I've never understood why companies do that sort of thing. If you have a business need, then you're paying.
Back in the early 90's I worked for a French IT company, due to the massive change that happened in the IT industry back then (switch from product to services), they undertook a massive restructuring, of which circa €300m had been allocated to staff retraining. At the next AGM an investor questioned this figure, to which the reply was along the lines of our people are our best asset and sales pitch, we are therefore improving their future employability and thus gaining positions where they can recommend the purchase of our products and services, hence this should be regarded at as being a PR and marketing investment. The budget remained and a large number of people subsequently found a future outside of that company.
From my experience that was some of the best training, over several years, I have received.
It has often amazed me how enlightened in some things the French are, yet the UK powers that be have a total "not invented here" blindness to such ways of thinking and acting.
Had a similar (though in this case the "paybacks" expected still applied over several years.
A big line was put through that part of the contract *along with my signature) and I explained it was not acceptable, especially as company had history of sending people on training in the past that they then never used in their work (& training was typically not anything CV worthy that would appeal to other employers such as CCNA or MCSE - if the training courses had been something "in demand" that could make me more likely to be "poached" by a competitor then some form of negotiation may have been an option)
Yeah, same thing here. My current company insists on such contracts for trainings.
Point one: I don't understand why companies want this either. "What if they take the training and leave?" is an argument, easily countered by "What if they don't do the training and stay?"
Point two: I'm in a job where I can easily go to another company and have them pay off any outstanding training budget as a sign-on bonus if it's needed
Point three: I have no plans to leave, but upping my skills is important to me and any residual debt IF it happens is worth it anyway. We're not talking multiple 50k courses in my case.
Left for a direct competitor. Six months non-compete. Full base and benefits, though no bonus. Already having the next thing lined up, I cleared off to the Aegean for the majority of it. It was like being back at school or university and getting the summer off.
When laid off last year, my non-compete was waived though the four months of continued pay made it feel very similar. I’ve a family now, so have used the time mostly for playgrounds.
New gig in a couple of weeks, same deal as the first — if my non-compete is ever exercised then I’ll be entitled to my full base salary for the duration, but won’t receive any bonus.
Of course, none of this affects that they’re often used in a predatory fashion to put [former] employees at a substantial material disadvantage. It’s just not always so. Sometimes they just genuinely want to buy a bit of brain decay and are willing to pay for it.
Just leaving school, I took a summer job as a cleaner while taking time to work out what to do next. I was sent a "contact" to sign and return. The non-compete clause was worded so vaguely that it would have prevented me from cleaning anything in any context for a period of three years. When that job ended, my immediate boss had the cheek to remind me that I can't leave for a competitor and the contract applied.
So I worked out how much I had worked for them, calculated what three years of that would be, and invoiced them saying I'll accept either full payment in 28 days, or monthly installments. But if they're going to have any influence on my future activities, I fully expect to be paid.
The company gave up on the idea. Probably took about as long as necessary to look through the filing cabinet to realise that I never signed and returned the contract (I binned it as the crap it obviously was), so they didn't even have any proof of such an "agreement".
Year ago I refused to sign a contract where they stated any patentable idea would have been theirs without compensation - moreover I was not an employee but just an "external consultant". I pointed out to them that way I would have kept for me any good idea and they would have lost it They were unable to understand.
The funny thing is they never submitted any other contract, so I kept working without one (and paid regularly, because my boss was not an idiot) - just when after he left and the company went into troubled waters - after may idiotic decisions took from new managers, I could leave at my will being without one.
When I first met Comp Sci students socially, I was surprised and un-impressed by their demand that all Intellectual Property belongs the programmer, and their readiness to break laws and contracts achieve that end.
I was an engineering student at the time, and came from an engineering background. The engineers I knew, and the engineering students I met, did not have that expectation: they understood and accepted that IP belonged to the employer, and that learning came with the job. That is, they regarded engineering as a shared enterprise, built on the shoulders of giants, dedicated to the common welfare, and funded by contractual obligations.
If that seems like some kind of religious holiness, all I can say is that the attitude of the comp sci students seemed like some kind of self-righteous asshole criminality.
they understood and accepted that IP belonged to the employer
Was that an unbounded statement ? I have friends who said they could not work on open-source because of new contracts imposed by their employer (a UK university). While it would have been entirely reasonable to say that the university owned any IP related to their employment*, the university wanted full IP of anything they did, any time, any place, during their employment. So even if they worked at home, out of work hours, on something unrelated to what they did at work - the university wanted to own it. I never did hear how that worked out, our paths diverged.
* Yes, that could be a difficult one to pin down.
I'd like to remind people that just because a contract contains a clause, that doesn't make that clause automatically legally enforceable. Which is why most contracts have a clause at the end along the lines of "if any part of this contract is found to be invalid all other remaining clauses remain valid".
I don't have a non-compete clause (not important enough!), though I do have a clause that states if I take a 2nd job (including self-employed) I have to get permission from my current employer first. Though they could only legitimately refuse if it was in direct competition.
At least Germany requires some payment during the non-compete period as compencence.
I once worked for a badly managed division of a company, which had just burnt itself out in the process of getting a project out the door.
Said project was hugely late, buggy as hell, missing most of the promised features, and the company had gone millions over budget between the overrun and the extra overtime, but it was done.
And so, quite a few people decided that it was time to move on.
Oddly, this caused a bit of panic at the higher management levels, not least because it was becoming clear just how ramshackle the new system was, and how much this brain-drain would affect their ability to keep it working.
And so, we were told that they'd be changing our contracts from a 1-month to a 3-month notice period.
Naturally, this was spun as a positive for the employees, since it meant that we'd have a longer notice period if the company decided to let us go. But it was pretty clear that this was an attempt to make it harder for people to jump ship, since any potential new employers would then have to wait much longer before engaging your services.
It's therefore perhaps not too surprising that the rate of brain-drain actually increased in the interim between this announcement and the new contracts coming into force...
Conversely, when similar happened at another company at the tail-end of the Covid lockdown, they took a look at why people were leaving and took steps to try and address the issues, including a pay review to bring everyone up to current market rates, which had risen significantly over the last few years. Which gave some people a literally life-changing boost!
And a year or so down the line, no-one's upped and left...
In the UK at least contract changes have to be by mutual consent. You can refuse any change to your original contract, even a pay rise or a promotion, and certainly a change to material terms and conditions such as notice period. I heard that the company can, of course decide that if they want to make you redundant they can give you three months notice if they like, but your notice period is actually your pay period. If you are paid monthly they your legal notice period in one month (Register legal beagles, please advise if incorrect).
I'm not a lawyer, but I work at an employment law practice and see a lot of the documents
In the UK the statutory minimum notice period is one week during your first two years of employment. After that it is one week for each completed year of employment (so five years, eleven months is five weeks' notice, six years is six weeks' notice) until it reaches twelve weeks (so a twenty-year employee is entitled to twelve weeks' notice). The employment contract can specify longer notice (for example some of ours are three months from day one).
Your pay period has no effect on this.
You are correct that changes to contract terms require agreement and the employee can refuse. The usual way to gain agreement is to offer some other incentive that's part of the changes (pay increase, extra day's holiday, some other benefit). The last resort is to dismiss people that won't agree for 'some other substantial reason' and offer re-engagement on the new terms. It they take the re-engagement their service is continuous so they maintain their entitlements to notice and redundancy pay.
This is an overview - there are procedures to follow so that it's 'fair'.
I'm not a lawyer, but I think legally you're not "redundant" if the employer wants to keep you working there or to replace you with someone else to do the work.
Or maybe now you are... there was that thing where P & O ships fired everybody then offered them less pay to keep working, and the UK government said "how dreadful, what a pity, and what a good idea" and I gathered somewhere that they would or they have made it legal. "Taking back control", I suppose. P & O were able to do it because the company is based in Atlantis, outside any territorial waters.
Where I work, the new contracts are issued saying that you work for the company based at X, Y, and Z. My contract was from ages ago, so it says only X.
Here in France it's not that easy to get rid of a full time employee (as long as they don't do fireable things), so the ruse that companies have is to give you your legal notice (2 weeks?) that your position is moving to another of the sites. If you go, it will have broken up the social clique that was likely part of the problem. And if you don't go, it's a dismissal, your fault.
Oh, and I should add the magic word "polyvalent" in a contract which means "all sorts of other tasks at the whim of your manager", and if hours are not rigidly stated but has any vagaries, then it could turn into weekend work or night shift all while keeping to the wording of the contract.
There's no better way to screw an employee than vague wording.
Humpy: Bernard, when you move on from here, where do you plan to go?
Bernard: Well, I er I I don't know.
Humpy: Like to be in charge of defence procurement?
Bernard: Oh, gosh!
Humpy: In Sunderland or Berwick or Lossiemouth?
Bernard: Is that a place?
Humpy: Lossiemouth? What'd you think it was?
Bernard: A dog food.
About 20 years ago when I was on a contract with HP thru an agency (some techie / engineering position), the agency contract had something about not working for clients of HP for a year.
I pointed out that probably alot of organisations, if not all, had a HP printer somewhere or other. That will mean that they are all clients of HP and I can't work pretty much anywhere for a year.
They look abit surprised when I pointed it out, so presumably nobody they ever sent to HP has pointed out this stupidity.
I signed it and was hoping that they will try to enforce it after I finished with HP.
Too bad they did not, although the next place I worked at did have a HP printer.......
Over in upper Canuckistan, copyright is automatically assigned to the employee by virtue of their duty of care to the employer and current copyright law.
Lot's of people don't like this because github and open-source and so on.
We had an amusing moment at $WORK when one fellow presented a lecture on his 15hour odyssey of producing and publishing an iPhone app (we were all amazed it was so quick).
The CEO was in the audience and we asked him, in light of the common knowledge that all employee-generated IP belonged to the company, what the licensing terms were.
"We will wait for any sign of revenue first..."
When I started this job 25 years ago, all the HR papers were sent home with us to be brought in signed with required documents the next day. A colleague, apparently smarter than me, took advantage of this to print out superficially identical forms but with pesky things like non-competes reworded to be meaningless. They never caught on.
Non-competes are no longer enforceable in my state (Illinois) for those making less than $75k US (about 60k GBP), though I make a bit more than that. Colleagues have left for direct competitors before with no repercussions, so they're really not enforcing it unless you directly take trade secrets with you.
The one they do enforce is if I were to leave and go to a supplier, I can't come back on-site to my current employer for business until a year later, which does make some sense.
"... catch on to the fact that a PDF is rarely immutable with the tools we have now.."
Years ago an agency sent me a subcontracting contract with a clause putting unlimited liability on me. I went to their website, got the T&Cs they use in dealings with their customers and copied that liability clause (i.e. liability practically zero) into the contract they sent me, and then signed it :) PDF editors are great!
as part of on-boarding for a position. It had non-compete and "all your IP are belong to us" clauses. I asked the HR person about those clauses, and he said he'd get back to me. Couple weeks later (with repeated unanswered phone calls from me in the meantime), they told me the position was offered to someone else. I think HR had such a hard time getting somebody in Legal to answer my questions that it was easier to hire someone else.
During that time, I talked to someone who had been through a very similar non-compete. Upon very careful reading of the terms, it did prohibit, world-wide, for a year, working on any competing products. Being in pharmaceuticals, though, that's often not an issue - if the old employer made tablets, and the new one makes injectables, and they're for treating different diseases, then they're not competing products, so it's fine. The person I talked to was a lab worker; only one product at the entire (new employer) site was a competing product, so his manager simply didn't have him run the tests on that product for the first year. Problem solved.
As for signing away your IP, I talked with someone else who has a number of IPs in their own name, despite their employer having such a clause. Essentially it's unenforceable unless the IP has something to do with the employer's business or what they're having you do. So my two music albums would have been unaffected. (Not that I broke even on the albums anyway.)
That's in the US. YMMV.
I once worked for an IT company where the standard contract has a re-written version of the UK copyright law that basically assigned all past or current personal rights I may have to the company. Oddly I never signed and after being around for about 4 years the company got in a new HR officer whose past experience was running staffing for hotels. A few weeks after joining she walked into my team's office and in front of my team informed me that I had to sign to contract by the end of the day or I would be let go. My team look at me and then look at her and just all started laughing, which got her a little confused, it got worse when I just told her that I would start clearing my desk. She never could get her head around the fact that IT staff were not as easy to replace as people who cleaned hotel rooms. She did not last very long and the next HR officer asked me to help rewrite the company contract so that it did not try and misrepresent basic British law.
Many years ago I was working for the consultancy arm of a large OS supplier. We were working at the head office of an insurance company and our team occupied half a floor of the tower block.
One morning an officious person from HR appeared, shoving papers in front of everyone present and demanding they sign them "at once" on pain of being escorted from the building.
Our boss intercepted her as she was about half way round the room. He took the remaining papers from her and read one while she got more and more annoyed.
He eventually handed back the papers saying, "You clearly are unaware who we are or what we are doing. Please gather up the rest of the papers, then go and do some basic research."
She didn't return.
A small company is bought by a big and a very well known multinational. The employees of the small company are presented with new contracts to sign. The intellectual property clause says something or other to the effect that "everything conceived by the employee belongs to the employer". The (prospective) employees start asking what rights the new employer could possibly claim to the employees' offspring...
I did spend the time talking to a lawyer and have an addendum drawn up which protects my IP, very clearly itemised. It requires a one-line change to a contract to refer to it but protects things I have already developed.
I find it's easier to negotiate that protection when you've already done the work, probably because it's less of a concern to see a concrete statement that worry about something vague that needs to be added to the contract.
"Non-Competition. I will not directly or indirectly, whether as owner, partner, shareholder, director, manager, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any business activity anywhere in the United States that develops, manufactures or markets any products, or performs any services, that are otherwise competitive with or similar to the products or services of the Company, or products or services that the Company or its affiliates, has under development or that are the subject of active planning at any time during my employment; provided that this shall not prohibit any possible investment in publicly traded stock of a company representing less than one percent of the stock of such company."
Overly broad and likely unenforceable? Sure. Do I want to test it to confirm? Nope.
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I had a quite reasonable contract that allowed the company I worked for to "consider" any out of work IP I produced.
I always told them that if I was to write a book on Yak Fu*king, I would have to put out a press release that said company was considering publishing a book on bestiality.
My non-compete clauses are in my employment contract. You know, the one they have to end to fire me. With no particular clauses to make the non-compete apply. Which means that as soon as the contract ends for whatever reason (I quit, or they fire me) I am no longer bound by it. Utterly pointless. But I'm not going to be the one to wise them up to it.
And non-compete clauses aren't very enforceable in the Netherlands (or the wider EU area) in general.
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After having two NYC-based IT jobs in the financial industry (finger-printed as part of a background check), and having to give a different sort of "IP" sample (to check for substances that a least one of which is now freely available in many USA states.)
And of course had to sign non-competes (as if racking & stacking servers, Linux admin chores or the occasional bash/python script writing are secret IP owned by any given employer.)
So if i decide to become a burglar, I will need to wear gloves.
Because they are scared, of several things.
Firstly, suppose they bring out the next blockbuster software, and then you claim IP on some bit of it* - absent a lot of legal wrangling that may or may not go their way after some time of lost sales, they then have to pay you a share of the earnings.
* Perhaps you wrote some little bit of code, for yourself, perhaps even prior to being employed by them. You then include much the same bit of code into what you are writing simply because their product needs the same function as yo did.
The other one that comes to mind is that you have a hit yourself, and they want the rights to exploit it.
In both cases, it could be a long and expensive argument to determine whether you did in fact create it in work time, or in your own time. And what about if you did some of the work during your lunch break, but using the company PC ? So in the eyes of the sort of people who use these sorts of clauses, the "obvious" solution is to claim everything you create.
Some years ago (a few decades) the Danish law about non-compete was amended so that an employer invoking it had to pay compensation for the period.
It then came out that some of the big players made informal agreements not to hire from each other, much like between Apple et al.
I don’t know if that was banned (left the country for other reasons), but that was one of the reasons I kept my membership of my professional organisation. Access to employment lawyers.
A company I used to work for agreed to poach me from a direct competitor. Salary, benefits, start date all agreed. Then they sent the paperwork to corporate, who insisted on “verifying” the salaries I had reported at previous jobs. They even wanted paystubs and W2s (tax forms), going back years!
like this years ago
"The employee agree to not use any tools, technology, or manufacturing techniques learned while employed at $company in any future employment"
Showed it to my lawyer who laughed and said "This should be fun in court.."
we black lined it.
Was rather disappointed when their HR did'nt even mention that..... was rather looking forward to appearing in court pointing out I'd learned to use a hammer while at $company and be banned from any job where I'd be using a hammer.
Or one that intends to move there.
I once worked for a software company. As I was going through my notice period, I was aware that they were looking to move into the US market. Various changes were being mooted but the funniest one that came out was to forbid staff from using the word "bug" when talking to customers.
This would be when I started to say "undocumented feature" instead!
This is from one particular employer:
"Everything you write is the property of the company, including that done in your own time, on your own equipment, at home"
"You may be required to work additional unpaid hours." Now this is pretty standard, but this guy really took the piss. He decided that the tech team would now, in addition to their normal 9-5.30 work hours, do tech support and testing on the weekends. Of course for no additional money.
In normal work hours, the boss would:
-Read all email, including that not addressed to him
-Open all post, including that not addressed to him
-Randomly monitor phone calls, and sometimes cut in.
-Had remote desktop viewer installed on all the PC's, so he could watch people work.
His attitude was always "If you don't like it, there's the door", and many *did* leave.
He was a bit like a toddler, always pushing to see what he could get away with.
Weirdest thing I ever saw in a contract was something like, if you should happen to come up with any intellectual property during the course of your work, then you should make sure to write it down on paper and send it to the head office for evaluation.
I pointed out that means I have to send them a paper copy of every line of code I write. Got the contract amended to say this duty can be discharged by checking code into the version control system.
Worked for the UK branch of a US company. Said company had had a UK employment lawyer (expensively) write their employment contract. The US HR director then insisted on "fixing" it. When it came time for me to escape the madness, I read the contract and discovered that my notice period was 4 weeks, except for a list of conditions. One of them was "resignation". So I resigned, and gave them a week.
The Human Right to Work overrides non-compete clauses in employment contracts, especially if you've been laid off. On the occassions a company has tried to enforce such terms in court, it's been nigh on impossible. What's in your head is yours, not the company's. Most people stick to them simply because they don't want to piss off people in the industry - it's a small world, what goes around comes around. But, if they've sacked you then all bets are off.
Remember that employment contracts written to try and gain advantage for the employer. They do not set out the actual legal precedents or the entire implications of all of law. You only have to fold and stick to its terms if so ordered by a judge. No UK judge is ever going to side with a company that's sacked someone and is also trying to enforce non-compete clauses in a dead contract, because of the fundamental right to work (which, so far as I recall, predates the EU-derived human rights act).
I was once picked for a round of layoffs when the company was going through a rough patch - plus I was going through some work induced health problems. They would have struggled to claim redundancy as our small team was as busy as ever, so they asked to discuss a compromise agreement. That's where every penny I ever paid, and have paid since, in subs to my union became worth it as they supported me against an HR person who was (in my union rep's words) "the slipperiest person I've ever met".
Anyway, the compromise agreement included a fair common clause that I will not, and will not attempt, to access any company premises or system - which would have been OK. However, given my fairly intimate knowledge of the main system that ran the company I did foresee that they might come back later with some queries - so I had them add "without authorisation". Not all that much later, and after a change of management, I did in fact get asked back and earned a few days of consultancy ("not greedy" rates agreed in advance).
When I start working, a looooong time ago, non-compete clauses were standard. Then the law changed, and companies had to pay for a monthly compensation if they wanted to impose such a clause. Unsurprisingly, they disappeared from most contracts.
Reading all these horror stories, I'm happy to leave in my socialist hell hole where I'm not just a meat bag at the disposal of my master employer.
I resigned from Google because I was required to sign that I had read their employee handbook. I asked for a copy of the employee handbook. There is no such document. I have an email from a Google lawyer telling me that the employee handbook is the whole Google intra-net (all internal documents at Google). I am famous at Google for being the guy who yelled at Larry Page in front of thousands of people because they wanted me to sign that I had read the employee handbook when there is no such thing.
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