As others pointed out, you need an hour with a labor lawyer.
Fish and Richardson, the law firm, says "Employees: Non compete agreements - don't sign them.[1]
It's often effective to take the contract, cross out and initial sections you and your lawyer consider overreaching, sign that, and turn it in. Then the company has to argue with you paragraph by paragraph, tying up their legal counsel, if they really want those terms. Also, there are special legal provisions about requiring a new employment contract from existing employees.
I went through this years ago with a very big company, refused certain clauses, and after some huffing and puffing, they gave in. This was important, because I did work for a startup on the side and got stock.
After reading that I would imagine he's going to jail for fraud.
If you disagree with sections you are to strike them out and initial them, additions or changes are appended to the bottom. This helps everybody know what's happening.
From reading the article it sounds like he didn't create his own agreement (for them to sign) but copied and then altered their agreement. If it contained their letter head and the terms as if they had written it not him, then it's clearly an attempt to trick the other party.
I did it once, they said sign or don't come on board. If you are bluffing, yes, go ahead, you probably have nothing to lose. Microsoft, I know, would laugh if you pulled that.
I have actually seen both crossing-and-initialing work, and, more often than that, simply not signing: take the paperwork, say you need to read it, and "forget about it". You can often slowroll things like this for awhile.
Except in the UK you have Transfer of Undertakings and Protection of Employment (TUPE[1]) to protect you from being handed a 'new' contract on acquisition. You must not have worse terms than with your previous employer. You certainly cannot be forced to hand over IP which was not covered under the previous contract.
Employers bent on evil normally give you around 3 months then 'restructure' the company (i.e. give you a new job title) as a mechanism to say it is a new job and not covered. They still need to wait 90 days before they can enforce that and you have the option to reject it (but get your CV updated in the meantime because you're leaving).
Employment law varies enormously from state to state, country to country etc. People in the US used to At Will will have no concept of what it is like to be With Cause (and vice-versa).
However, even With Cause employers can get rid of anyone they want. In the UK it's classed as a 'right to manage your business' and the worst downside is a small compensation payment which rarely exceeds a few thousand pounds (occasionally there are large payouts for the most egregious things, especially racist or sexist bullying). In the US, payouts could be larger but for many businesses they just see that as part of the exit package and budget accordingly. Always remember, in a business, no-one cares about you and these people are not your friends.
Having been through it multiple times, my advice is always have your CV up to date and if you don't like the look or smell of the situation, it's time to leave. You will feel much better and less stressed if you feel in control of your destiny and not being played by some Evil Overlord who doesn't give a damn about you.
Except in the UK you have Transfer of Undertakings and Protection of Employment (TUPE[1]) to protect you from being handed a 'new' contract on acquisition. You must not have worse terms than with your previous employer.
That's a nice theory, but in practice we also have lawyers who specialise in dealing with M&A situations and minimising the impact of TUPE. I've been in a situation that looks like a textbook example of what TUPE was intended to cover, yet one of the first things the acquiring company's lawyers did was seek to limit its effects, apparently quite successfully.
As you pointed out, any protection you get under TUPE tends to be for only a relatively short period anyway. It might be enough to stop you getting completely screwed over on the day the acquisition goes through, but ultimately if the new employer or their management team are not the same kind of people you used to work with, you're probably still better off getting out early.
Incidentally, this is also a good argument for not signing a dubious contract even if you know and trust the current employer and management team. In the event of a change in control of the business, the incoming leadership get to keep the same terms by default; that is considered reasonable since you already worked under them before. So just because a nice employer doesn't exploit some contractual advantage today, you should never assume the new face of that employer won't do so tomorrow.
This principle applies more generally than that in the UK. Someone I know very well got screwed following a formal grievance at work because of this. Due to bad advice, a deadline in the process passed without the right things happening, and the formal process technically ended. Although the person was actively seeking other advice over the following weeks, they continued to work, and then when things came to a head, basically the first thing the company lawyers cited was the continued work without further (to the company's knowledge) objection. For practical purposes, that was game over in this case.
Bottom line: If you aren't happy with a contract, either explicitly challenge it immediately or don't start to perform your actions under it until the matter has been resolved.
Also, many places state that any probationary period lasts until X months after the contract is signed, so you are extending the period during which they can change their mind about you without notice. (that works both ways of course: you can change your mind about them for the same amount of time)
I wouldn't call it insane, it's similar to the idea that if you email someone a summary of what was agreed, and they don't reply contesting it, they've accepted that version of events.
Basically one of the parties has provided a written record of their version of events, if you don't agree with it, you need to speak up.
In the end they've told you the contract they want you to work under, they have provided you with a copy and you seem to be happy to carry on working and taking their money. If you have a problem, why didn't you speak up? So it's implicit that you accept the new contract.
Perhaps it's not the law in your country, but it's definitely not insane if you're in a grey area and in this instance the law sides with the written contract, not the avoidance strategy.
You guys are all wrong. There is no blanket automatic acceptance of contracts if you ignore them in the UK.
There IS automatic acceptance of updates to previously signed contracts, ONLY if the original signed contract contains "terms permitting the employer to make changes from time to time" without your permission.
That is completely different than automatic acceptance of all contracts that are left unsigned and ignored.
Acceptance by conduct is a straightforward and accepted principle of English law.
In the same way as continued use of a website can constitute acceptance of terms of use, showing up for a job having been provided with a contract, but having not signed it, can also constitute acceptance of that contract.
If you don't like contract terms, firstly don't sign up to them but secondly don't start working at a place as if you had signed up to them.
It would be difficult to argue the contract wasn't binding if you had acted in compliance with certain of its terms. The more specific those terms you are complying with, the less likely you would be able to claim you weren't bound by the whole contract.
For example if the contract states you have to travel to a particular ___location once a week, and you comply with that obligation, you would be less likely to argue you weren't bound by the whole contract.
> However, if you put up with the change without
> protesting, there is a good chance that you will
> be viewed as having implicitly accepted the change,
> losing your right to object to it.
I'd be surprised if the US hasn't inherited implied contracts via common law.
No, don't quote out of context. That's ONLY if you already previously signed a contract with them, and that original contract specifically allowed them to make future updates without your permission.
> Basically one of the parties has provided a written record of their version of events
Not in this case being discussed (procrastination in signing). The company doesn't have a written record of their version of events, namely a copy of the contract with your signature.
I agree. I almost didn't sign but I also couldn't afford to go without a job. Two years later I'm trying to figure out exactly what I signed because I believe it was very limiting.
That's a weird situation to be in. If they can't reproduce it now they may not be able to produce it at all effectively they've just said they lost your contract which for any self respecting HR department is an absolute failure in their duty. Imagine, if they don't have it, what could have possibly happened to it?
Of does 'unable to produce' translate to 'unwilling to produce'?
So far they told me that I should have a copy. My assumption is that they can't actually find it. Found a generic copy from around the same time period that should be similar.
Both parties need to initial the crossed-out sections for it to be fully legally binding. It's best to just ask for a new version without the sections you don't want to agree to, it's no use trying to fly under the radar, that's dishonest.
Not being legally binding is perfectly fine here, isn't it? In a situation like this, you're crossing out sections because you don't want to sign the contract unless those are gone. Both "this isn't valid at all" and "this is valid minus the stuff I crossed out" are acceptable.
And I don't see this as "fly under the radar" at all. They should look at the contract they get back from you, just as you should look at the contract from them. If they don't even notice that you crossed stuff out, that's hardly your fault.
No, I mean that your edits won't be legally binding, but the rest will. It's natural to assume that any changes to a contract would be mentioned, it's unnatural to assume that the other party must pour over the contract for late revisions made in silence.
So something you crossed out and initialized would still be considered binding because the other party didn't also initial it? I don't understand how that could be. I could see that if you added clauses those new clauses wouldn't apply, but if it's clear that one party never agreed to a clause, how could it still be in effect?
They didn't receive confirmation of the contract changes, yet they still started their employment, which could be considered to be agreeing to the original contract.
Regardless, the employer almost certainly has a very high caliber legal team, and you? do you even have a lawyer? You think that you're going to get the better end of the argument in court based on an extremely tenuous thread? That's not the smart way to bet, you're more likely to get your ass handed to you. If you want to modify your employment contract you need to be upfront about it.
The only person in this thread who I see saying anything about not being upfront about it is you.
I'm curious as to how this would play out in court, though. They say you agreed to such-and-such in the contract. Asked to produce the original contract, they pull out a copy with your signature and the relevant clause crossed out and initialed by you. Is the court really going to say, "Well you didn't initial it, so even though you clearly saw this change and accepted the signed contract and said nothing about it over the X years that Bob worked for you, we'll say that it's still in force"?
I'd also like to know why "they still started their employment" would be considered to be implicitly agreeing to the employer's version of the contract, while "they still paid their employee" would not be considered to be implicitly agreeing to the employee's version of the contract.
I can see how you'd get in trouble with the tactic of just taking the contract and then ignoring it. But you get a contract, you counter, everybody shakes hands, you're on the payroll and somehow that implies that you agreed to theirs, and not vice versa? How could that possibly be?
I don't see it as trying to fly under the radar. I see it as 'you demands are so stupid you don't deserve a verbal response'. These sorts of contracts are so lopsided that not getting a verbal response is probably the most polite response they will be getting from me.
If someone can't have a conversation about an employment contract any more politely than "no verbal response" I have to wonder how they ever get hired in the first place.
The "must disclose any existing inventions or ideas to the company now and that anything not enumerated belongs to them" is what does it. Almost none of my offers have ever included such a line. Any company trying to push that does not deserve a respectful response.
I can have a conversation about the contract. But when the contract includes that, it is like being given a serious minimum wage offer.
So then you refuse that contract. If you are saying that the whole process is unserious then you're making a huge mistake since the legal system considers signing a binding contract to be a serious endeavor regardless of how you feel about it.
You think that will fly in court? A contract is an agreement between two parties. If there are provisions in the contract known only to one party that renders it potentially invalid, because the other didn't agree to it.
That's pretty silly. Just strike out the parts you don't agree with if that's how you feel.
Is there a reason why one should quit instead of negotiating the contract while also letting them know you are offended by their initial offer? (Of course, if my current employer pushed something like that on me, I would be starting to look around.)
If anything, quitting is likely worse than being let go because you likely have less of a claim with regards to unemployment (a lawyer would need to specify the actual details).
Lol, be advised this may cost you your job if you are serious and not bluffing. Get a good competing job offer before trying this. Or be willing to go unemployed (most engineers can risk this)
If you are serious, talk to your lawyer. Don't guess or negotiate randomly. In some states this boilerplate language is meaningless, in others not so much.
You could be a critical part of the acquisition, in which they bend. Or you could be a part of the product that was going to be redundant anyways and they will be glad of the excuse to let you go.
Any half decent employer that isn't willing to negotiate is just going to say that. They risk losing a hire if they say that though, so some will be willing to negotiate. If you try to bluff them, it almost certainly won't work because nobody wants a troublesome employee with a big ego, so if your going to walk because of the non-compete, you better mean it.
Even if they bend, they will get pissed off and will likely retaliate in some passive-aggressive way. And there are a million ways to screw you over, especially with equity, bonuses or promotions. If things don't work out smoothly, that's the end of it.
If the company wants to hire you, they will want to negotiate a deal that works for both parties. Crossing out and signing might be a bit harsh, but there should be no problem saying to the employer that you disagree with some sections.
Fish and Richardson, the law firm, says "Employees: Non compete agreements - don't sign them.[1]
It's often effective to take the contract, cross out and initial sections you and your lawyer consider overreaching, sign that, and turn it in. Then the company has to argue with you paragraph by paragraph, tying up their legal counsel, if they really want those terms. Also, there are special legal provisions about requiring a new employment contract from existing employees.
I went through this years ago with a very big company, refused certain clauses, and after some huffing and puffing, they gave in. This was important, because I did work for a startup on the side and got stock.
[1] http://www.fr.com/files/Uploads/Documents/Dos-and-Don%27ts-o...