I’m sure this doesn’t apply to you. You’re one of the smart HR people. You have no dumba-- tendencies at all. But maybe you know someone who does this, so feel free to pass it on.
Noncompete, Confidentiality and Non-Solicitation Agreements
At least once a month, I have to request a copy of a former employee’s noncompete, confidentiality or non-solicitation agreement. Why? Because HR refused to give them a copy when they signed it.
My conversation with the client after they get the nastygram from the company lawyer usually goes like this:
Me: “Do you have a copy of the agreement?”
Me: “Why not?”
Client: “They told me it’s their policy not to give copies.”
Me: Pounds head on desk. “Then how are you supposed to know what you’re not allowed to do?”
Better yet, there’s this conversation:
Me: “Do you remember even signing an agreement?”
Client: “I don’t think I did. They handed me a bunch of papers my first day, but I think I’d know if I signed a noncompete.”
So I ask you, what the heck is the point of withholding the agreement? Better yet, I’m having a conversation right now with a company representative where, even after the nastygram, they’re refusing to give me a copy of the agreement. Apparently, I’m supposed to rely on their good word that: a. my client signed anything and b. they agreed not to work in their profession anywhere in the universe for a year. Hello? Anyone in there? It’s your burden to prove the contract exists, not mine.
If you can’t prove it to me, I assume what you’re saying is BS. Because about 1/3 of the time, employers claim that employees signed agreements that don’t exist just to scare and bully them into not working for a competitor. And don’t even think about forging one. I have a handwriting expert, and I’m not afraid to use him. (Yes, this really happens.)
The point of a noncompete agreement is to tell the employee what they are and aren’t allowed to do. If you don’t give them a copy, they have no idea. So you can’t blame them when they accidentally breach, can you? I’d like to hear you explain to a judge or jury how the employee was on notice of their obligations when you wouldn’t give them a copy. Can anyone say unclean hands?
Even better than this idiocy is the company that has the employee sign a paper saying they’ve been given the company handbook. When I ask where it is, the employee tells me they didn’t get a copy. Why? The company considers the handbook confidential. Say what?
The point of the handbook is to inform employees what is expected of them. What’s the point of refusing to give it to them? Are you that financially desperate that you can’t afford the $2.50 to copy it for them? Is it worth risking losing out on the defense you have if they fail to report sexual harassment when there’s a published sexual harassment policy? Do you think having them sign a paper saying they received it will make a difference when the jury hears that you made them sign something that wasn’t true? Why on earth wouldn’t you want employees to understand what conduct is prohibited? Why wouldn’t you want them to understand your absentee, discipline, and dress code policies?
Enlighten Me, Please
Maybe someone out there in HR can enlighten me. Because I see this refusal to make copies as pointless and stupid, maybe even dangerous to the employer and its ability to win a lawsuit down the road.
Some advice if you don’t want someone like me sitting across from a table taking your deposition: make sure your employees get copies of everything they sign, and that they understand what they’ve agreed to. Otherwise, how can they possibly do what you want?
Okay. Rant over. For now.
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