Can Your Employer Force You To Sign A Contract Saying You Volunteered To Work On Sunday?

It's been awhile since I answered my reader questions here. This question is one I found interesting:

I have a question about unfair work practices. My husband works for a very large company that does extremely high volume during the Christmas season. All employees were required to work on Sunday (following a six day work week). They were told that everyone was expected to be there despite the fact that no one had a day off during the week. This morning when they arrived, they were told that they had to sign a document that said they had volunteered to work on Sunday, otherwise they would be sent home. Most of them signed because they were already there and had planned on working today. Are companies allowed to do something like this?

I can read this question three different ways, so I'll address them all. 

Agreement to volunteer to work for free: The first way I read it is whether your employer can make you sign an agreement that you are a volunteer so as to avoid paying you. The answer is a flat-out no. An agreement that tries to waive your right to overtime or to be paid for all hours worked under the Fair Labor Standards Act is not enforceable. Furthermore, if you work for a for-profit company, you are never a "volunteer" such that you can agree to work for no pay. If the employer suffers or permits you to work, then you are entitled to pay.

Agreement to waive religious accommodation: If you have requested a religious accommodation to work on Sunday, then the EEOC and courts would refuse to enforce an agreement waiving future discrimination. In other words, you can't be forced to sign an agreement to be discriminated against in the future. On the other hand, where states like Florida allow employees to be required to sign agreements in consideration of continued employment, if the employer handed you an agreement on Monday that said you were agreeing that you waived your right to sue for religious discrimination because you worked voluntarily on Sunday, would that stand? The truth is, maybe. The courts have been very harsh on employees regarding noncompete agreements and arbitration agreements that are presented as "sign or be fired," so would a "sign or be fired" release fly? I think probably not, but I'd never underestimate the ability of employers to push for case law that grinds employees' rights into dust. Allowing a waiver like that immediately after an act of discrimination for the sole consideration of continued employment would make a mockery of the employment discrimination laws. If an employer presents you with an agreement saying sign a waiver of discrimination that just happened or be fired, I think that would be unlawful retaliation and discrimination.

Agreement to work on Sunday: If the agreement simply says that you agree to work on Sunday, and you don't have any need for a religious accommodation, then your employer can make you sign an agreement to work on Sundays, and they can say you voluntarily agreed to work on Sundays. Which I guess is true, if they mean you "voluntarily," under threat of losing your job, decided to sign. If you live in one of those states like Florida that doesn't consider "sign or be fired" to be economic duress, then they can probably make you agree.

States With Pro-Employee Laws: Consideration For Noncompete Can't Be Continued Employment

Florida, like some other states, allow unscrupulous employers to present noncompete agreements to existing employees and say, "Sign or be fired." What does the employee get for agreeing not to work for a competitor for a year or two? Continued employment. That's it.

The effects of this can be pretty devastating. Say you left your job for a better opportunity. You start the new job and then, whammo! You have to agree not to work in your industry for 2 years, all your contacts belong to the new employer, and they can fire you a week after you sign. Fair? Heck no. Legal? Yes, in most states.

However, there are some states that just say no to allowing continued employment to be the sole consideration for a noncompete agreement. Last week I talked about some states that even require advance notice, prior to employment, of the noncompete. This week I'll talk about those states that don't allow employers to demand a signature without some real consideration.

Hawaii, Kentucky, Minnesota, Montana, New Hampshire, North Carolina, Oregon, Pennsylvania, South Carolina, Texas, Virginia, Washington, West Virginia, Wisconsin, Wyoming say that continued employment alone is not sufficient consideration for a noncompete or nonsolicitation agreement. In those states, employers must offer something extra, like specialized training, a promotion, a raise, a change to non-at-will status or other consideration for the noncompete or nonsolicitation agreement.

In Illinois, employees must be employed at least two years for continued employment to be valid consideration for a noncompete agreement.

There's a pending case in Wisconsin that will decide the issue. In Alaska the issue is still undecided.

As you can see, state law varies wildly (and it changes constantly). Talk to a lawyer who handles employee-side employment law in your state to find out whether or not your noncompete agreement is enforceable.

If your state is one of those that allows employers to walk in one day and demand a signature upon pain of firing, maybe it's time to talk to your state legislators about why they aren't protecting employees in your state.

Answers To Your Questions On Noncompete Agreements

I was just going through some of my old blog posts when, what to my wondering eyes should appear, but new(ish) questions on some posts from long, long ago. The post with the most questions is  Non-Compete Agreements - Top 5 Ways To Get Out of Yours, which I wrote in 2010. Since I'm a fan of all things undead, I thought I'd pick a couple of neglected questions and bring them back to life by answering them here.

Please remember that asking me questions in my blog doesn't create an attorney-client relationship, nor are my answers legal advice. I'm glad to discuss legal issues generally and offer my thoughts. Asking here is for public consumption, as are my answers.

Fired 10 Days After Signing Noncompete

Here's a question from Jeremy M:

My state (Kansas) has a law saying employment can be enough consideration at the time of hire, but I can not find anything relating to a condition of continued-employment. After a year of employment with-out a non-compete at a local sales firm I was threatened with my job unless I signed a non-compete. It was during the holidays last year and I was the sole-provider for my family. After a couple of weeks of almost daily mentions I finally signed under pressure, only to be terminated 10 days later. It truly felt like it was a setup.

Do you know where I can research more regarding the consideration clauses of my state? I don't feel I have the resources for a employment lawyer, and am considering self-representation. Thank you for any insight!

 I'm so sorry to hear about this Jeremy. You'd be surprised how common it is for employers to demand an employee sign a noncompete where the only consideration is continued employment, then fire the employee shortly after firing. That's very likely considered fraud in the inducement, which means that they never intended to continue your employment when they demanded you sign, so the fraud might void the noncompete. The elements of fraud in the inducement are: 1) A false statement of material fact; 2) The person making the statement knew it was false or made the statement with reckless indifference as to its truth or falsity; 3) They made the statement knowing you'd rely on it; 4) You did rely on it and were damaged. Sounds like your situation.

Some states also recognize fraud by omission, where one party has special knowledge that the other party couldn't discover, or where they had a duty to disclose, and treat the omission the same as if they'd made a false statement. Unless something really drastic happened in those 10 days, such as losing a major customer or being hit by a meteor, the company probably knew you were going to be fired when you signed.

I looked for a place online that outlines the noncompete laws in all 50 states and found one here by the firm Beck Reed Riden LLP in Boston. Their chart says Kansas is one of the states that allows continued employment as valid consideration. However, if they never intended to continue your employment, that might also be a failure of consideration.

I'd suggest talking to an employee-side employment attorney in Kansas about your rights. You can search for attorneys by state on the National Employment Lawyers Association website. NELA members represent employees.

Can Customers Follow Me If I Don't Have a Non-Compete?

Here's a question from Arsalan:

Hi Donna,
I am switching jobs and going to another company who is a potential competitor to my current employer. There are clients at my current employer who are asking me if they can come to my new employer because they want me to provide them the services. I do not have a non-compete with my current employer. Should I encourage the clients to come to my new employer and it's asking for trouble.

Thanks!

 Hi Arsalan. If you don't have a noncompete, then make sure you don't have a non-solicitation agreement. That's an agreement saying you can't solicit the company's customers to follow you to your new employer or to leave/reduce business with your former employer. If you have neither, then you're probably free to do business with your former employer's customers.

A couple of things come to mind to watch out for. If the customers have contracts with your former employer, don't ask them to or encourage them to break or cancel the contracts. You might get sued for something called tortious inteference with a contractual relationship. If the customer already left them or intends to leave them, then you probably won't be tortiously interfering.

If the company has a confidential customer list, then be careful. You might get accused of violating trade secrets law if you take the customer list with you and start using it. You're better off using publicly available information if you can. For instance, if you sell a computer program for banking, get a banking directory or Google "banks" and start from there. In most states, publicly available information is not a legitimate interest for your former employer to protect even if you do have a noncompete.

When in doubt, talk to an employment lawyer in your state about your rights and responsibilities. Good luck!

That's all for the zombie Q&A for now. I'll try to resurrect some old questions again in a future post.