- “I tried to get a better life for my wife and my son, and it backfired,” said Mr. Bollinger, who is 53. “Now I’m in my mid-50s, and I’m ruined.”
Mr. Bollinger had signed a noncompete agreement, designed to prevent him from leaving his previous employer for a competitor. These contracts have long been routine among senior executives. But they are rapidly spreading to employees like Mr. Bollinger, who do the kind of blue-collar work that President Trump has promised to create more of.
One of the very few advantages to being a lawyer: since most laws are written by us, we're exempt from non-compete clauses :)
Disclaimer 1: Not a lawyer. No legal experience whatsoever. Disclaimer 2: If a current or previous employer sees this, I'm impressed you found this account and linked it to me for one, but I'm not disparaging any of you guys or calling you out by name so please don't sue me. I don't have any money worth taking. I had a conversation with a friend about this in the past. Believe it or not, you'll see these kind of non-compete clauses in retail, fast food, grocery, and warehouse work too. They're not really meant for the entry level employees, but they're part of the standard HR paperwork that everyone has to sign, so everyone is beholden to that policy. Technically speaking, from what I understand, for a lot of people that part of the contract would be deemed unenforceable because they do not have any skills or knowledge that's exclusive to the company and it doesn't take a lot of training or a lot of money to teach someone how to load boxes on a pallet. Most people in low skill, entry level jobs can go from one company to another and not have to worry about the non-compete clause because these companies have bigger things to worry about than someone who makes $10 an hour. However, some people do hold back, just in case, because if you make $10 an hour, there's no fucking way you can afford a lawsuit. You'd be amazed at the stuff that even entry level workers have to sign that dictate things such as whether or not they can take a second job in a similar role, what they can and can't say on social media, whether or not they're allowed to talk to the media about their work experiences, and on and on. You'll often find policies that run counter to the FLSA, FMLA, and other acts that would then be by default unenforceable, but once again, can you afford the risk of running counter to those policies and losing your job? Doubly so if you're not in an union and are working in an at will state? I know I can't. Shit's scary as fuck. Still. Employment laws change all the time from the county to the federal level and it can be hard for HR Teams to keep up. Hence, boilerplate and sometimes dated policy contracts. I'm not excusing anything, just adding a bit of texture to the story here.
This is the crux of it right here. "At-will" employment gets described like it's somehow equal for both the employee and the employer, but the respective bargaining positions are not remotely equal.Doubly so if you're not in an union and are working in an at will state? I know I can't. Shit's scary as fuck.
Here's a lawyerly question for you. If a person were presented with a contract that barred them from filing for unemployment, they would certainly have the right to tell the employer that the clause is illegal. But the employer in that case may refuse to give them the job. So is it in the employee's interest to just sign, knowing that illegal contracts are unenforceable? Or does the person risk harming his/her self by signing a contract that the person knows to be illegal?
Good question. I doubt it: most contracts have what's called a severability clause, which says that if one part of the contract is said to be unenforceable, the rest of the contract survives as-is. So that probably means that the rest of the contract is fine. Now, there are some other considerations here, because the real world is messy. If I were reviewing this for the employee, I would tell them that there could be other weird situations where showing good faith is important, and this could affect that. The other thing would be suggesting that if a company is putting this in there, it's a serious red flag. If I were representing the employer, I would pull a Lionel Tribbey from the West Wing and go after someone with a cricket bat.
Many times I have had clients asking to include outrageous, unenforceable clauses in employment/consulting contracts. I advise that if the worker does not push back they are either desperate, unsophisticated or think you are full of shit and you do not want to be offering those people jobs anyways. Plus if they did ever want to litigate any part of the contract the judge will think you are an asshole and may decide any issue of credibility against you. 2 years in North America for a non-management worker is incredibly stringent and would not have a chance in hell of surviving in Canada. Employment litigation is horrible for the worker but I like that we at least have loser-pays costs awards here.
Actually, I wanted to add too, that some of this stuff I get. Like, I understand a company firing you if you talk shit about them on Facebook. One of my prior jobs was hearing cases for the unemployment system in my state. Basically I'd talk to both sides, try to figure out why the person quit or was fired, and then decide whether they should get unemployment based on that. We of course never dealt with non-compete clauses, since that was a private issue. Interestingly, every once in a blue moon we would see an employment contract requiring that the employee agree not to file for unemployment. This is illegal in my state (and it's actually a misdemeanor for the employer), so needless to say those didn't get the employer anywhere. But I do wonder how many people didn't apply for benefits at all because of one of those.