Help Wanted: How noncompete agreements affect employees

A worker must comply when an employer requires A worker must comply when an employer requires the immediate signing of a noncompete agreement carrying a threat of being fired, but that can work against the company down the line. Photo Credit: iStock

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Carrie Mason-Draffen Newsday columnist Carrie Mason Draffen

Mason-Draffen, a business reporter, writes a column about workplace issues.

DEAR CARRIE: If you have been employed for a number of years at a company, and out of the blue the company requires you to sign a noncompete agreement, does the employer have the legal right to do so? And we want a lawyer to look over the agreement before we sign. But our employer insists that we sign on the spot or risk being terminated. What recourse do we have?

-- Raw Deal

 

DEAR RAW DEAL: For answers, I turned to an attorney who has negotiated and litigated noncompete issues on behalf of employees for more than 30 years. He's Alan L. Sklover of Sklover & Co., a Manhattan-based employee-rights law firm.

Your company legally can deny you the right to consult a lawyer before signing. But that could work in your favor in the long run. More about that shortly.

"While it is surely unfair, seemingly improper and surely heavy-handed for your employer to deny you the opportunity to have a lawyer review the noncompete agreement, and explain it and its implications to you, before you sign it," Sklover said, "nothing in the law says an employer must give you that opportunity."

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But that approach carries a risk for your employer in future disputes involving the noncompete agreement. (Employers use non-competes to prevent ex-employees from competing against their former companies for a certain number of years.)

"The ironic and almost funny thing about what your employer is doing in denying the opportunity of legal counsel on the noncompete is that, by doing so," Sklover said, "your employer is making your noncompete agreement almost definitely void."

He said the two best defenses an employee can raise when fighting alleged noncompete violations are, "I did not understand what I was signing," and "My employer refused to permit me the opportunity to get a legal review first," said Sklover the author of "Fired, Downsized or Laid Off: What Your Employer Doesn't Want Tou to Know About How to Fight Back."

So when an employer seeks justice from a court in a battle with a former employee over a noncompete disagreement, the employer must show defensible conduct.

"In law that is called the 'Clean Hands Doctrine,' that is, if you want the court to help get you fairness, you had better have been fair on your own," he said.

That's the opposite of what your company showed.

"Denying you the chance to first take the noncompete agreement to a lawyer is self-defeating to the employer, and quite liberating for you," he said.

Sklover suggests you first do everything necessary to keep your job, since the job market remains challenging.

"That is, sign and deliver the noncompete as required," he said.

Next, he suggests that you send your manager an email -- and send a copy to yourself at home -- with the following wording:

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"Even though you will not permit me to show this to an attorney before I must sign it, I have signed it as you have required; here it is," he said. "That email is a kind of evidence that, when shown to your employer or the employer's lawyer at a later date, will in all probability convince them to not even try to enforce the noncompete."

And he added, "Actually, you could probably show up in court with that email alone, and win your case."

So the facts are on your side.

"While your employer is being quite unfair to you" Sklover said, "that unfairness is even worse for your employer."

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