Fair? No. Legal? Yes, in most states.
There are some states that protect employees by requiring advance notice of a noncompete agreement. You'd think voters would rise up and demand such protection, but after this week's election results I guess I shouldn't be too surprised.
Here are some state laws that give protection to their citizens by requiring reasonable advance notice of a noncompete agreement:
Oregon: Oregon's statute § 653.295 says:
(1)A noncompetition agreement entered into between an employer and employee is voidable and may not be enforced by a court of this state unless:New Hampshire: New Hampshire's statute RSA 275:70 used to say:
(a)(A) The employer informs the employee in a written employment offer received by the employee at least two weeks before the first day of the employees employment that a noncompetition agreement is required as a condition of employment; or
(B)The noncompetition agreement is entered into upon a subsequent bona fide advancement of the employee by the employer.
Prior to or concurrent with making an offer of change in job classification or an offer of employment, every employer shall provide a copy of any non-compete or non-piracy agreement that is part of the employment agreement to the employee or potential employee. Any contract that is not in compliance with this section shall be void and unenforceable.However, this year New Hampshire's legislature modified the law to say:
Any employer who requires an employee who has not previously been employed by the employer to execute a noncompete agreement as a condition of employment shall provide a copy of such agreement to the potential employee prior to the employee's acceptance of an offer of employment. A noncompete agreement that has not been disclosed to an employee as required by this section shall not be enforceable against the employee, but all other provisions of any employment, confidentiality, nondisclosure, trade secret, intellectual property assignment, or any other type of employment agreement or provision shall remain in full force and effect.
Connecticut's legislature passed a law that would require advance written notice that a noncompete would be required, but it was vetoed. Massachusetts tried to pass a law limiting noncompetes that would include an advance notice provision, but that effort failed. With a new governor of that state coming in soon, it's doubtful any limits will be passed anytime soon.
What's so unreasonable about giving advance notice that an employee is going to have to sign a noncompete agreement if they accept a job? Why don't other states pass laws preventing the "gotcha" that many employees face if they want to keep their jobs? Well, nothing will happen unless you stand up and fight for your rights. Unless voters demand change, most states will continue to allow this kind of employee abuse.