Noncompete agreements after the fact

GLC

We recently lost a major client to the former manager of the program. We want to ask the new manager, who was promoted internally to the job, to sign a noncompete clause. However, she has been in the job for a little over a year. If she does not sign it, we would want to put her back in her old job. Can we legally do that? Has anyone else ever done that before? Would the agreement be enforceable since she has worked in the job for over a year?

lorrie

It is possible, but tricky. Do some research on noncompetes before writing yours. Also, check out how your state enforces them.

You will usually have to provide something of value, in addition to continued employment, in order to seal the deal. ($cash works well) (But if done correctly, you can remove the employee who refuses to sign the agreement.)

Some things to consider to help make them more enforceable: Think in terms of protecting your business, as opposed to limiting the employee. Specify a reasonable geographic/demographic limitation, don't go overboard. Realize there is a timeline, it can't limit the employee forever.

Just a few thoughts. Good luck.

ScorpioHR

Interesting, we have a similar situation. We have a 3 person marketing department, the last ee to come on board was required to sign a non compete, the other 2 who have been with the company 2+ years did not sign one. I do not think this is fair and have pointed that out more than once to my superiors. They still have not done anything. Seems to me some law, some where could label this discrimination if the ee found out. I will be watching this thread closely for the forums wisdom.





scorpio

LivindonSouth

I don't see how it could be discrimination. Maybe unenforceable and time wasted, but, discrimination?

System

"the last ee to come on board was required to sign a non compete, the other 2 who have been with the company 2+ years did not sign one. I do not think this is fair"

That kind of situation happens as a result of the company's experience, history, or a change in the need of the company. It falls under a 'past practice' clause. The company can change it's practice if it recognizes a need to do so. It is fair.

Here's an example. We hire candidates who are paid a salary and given full benefits while we send them through a police academy for at least 6 months. We had several who took the pay, benefits, and training and as soon as they were sworn in, took a position with an agency who paid more. We began the practice of having them sign a three year reimbursement agreement, even though our past practice was not doing so. As a result, we have some officers on board who did not sign agreements, but the more recent recruits did.

Just be consistent in having any future marketing candidates do the same thing.

ScorpioHR

I would LOVE for this company to be consistent with ANYTHING they do - Aint gonna happen. I just think it is unfair to the who did have to sign. Especially since she is the lowest paid of the 3.



scorpio

LivindonSouth

Scorpio: If you keep messing around with this stuff, they are going to run you out of Dodge!!




Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

ScorpioHR

No, I was just looking for feedback on what I thought. I already ran myself out :-) Thank you very much. I thought part of our responsibility as HR was too see things coming down the track. I guess not and I bow to your wisdom Oh Don D!
Yep, you offended me and I will say it here rather than post it privately.


scorpio

LivindonSouth

I reviewed my posts and don't see anything that could be offensive to you. I asked you in one post how it could be discrimination, and in the last post I cautioned you that they are going to run your butt off. If that's offensive, I don't know what more I can offer. Sorry for having even posted. Solve it yourself.




Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

Balloonman1

Damn scorpio.....it that offended you wow.....hope you were joking, either that or your skin is wayyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy to thin for HR.

Don, you were anything but harsh.......

My $0.02 worth......
The Balloonman

Cheryl S SPHR

SHRM posted an article entitled "Continued at-will employment is sufficient quid pro quo for noncompetition agreement" in April 2004. It was based on an Ohio Supreme Court decision -- Lake Land Employment Group of Akron Ohio v. Columber, 101 Ohio St.3d 242, 804 N.E.2d 27 (March 10, 2004).

You might want to take a look at this, plus any similar cases in your own state. It would seem there exists some precedence to obtain non-competes after employment, at least in Ohio! We have done it in South Dakota, with no problem. But, we are an at-will state as well.

As always, you must limit the geographic area and length of time to something reasonable.

Good luck.

Cheryl