You don't have a copy of your noncompete and can't figure out how to get one without asking management, who would definitely penalize you just for asking. You want to leave but the only option you think you have would be a competitor. Or you signed a bunch of documents you didn't read when you started called stuff like Confidentiality Agreement or Bonus Agreement and now you think you might have signed a noncompete.
If you’re a regular reader of my blog, you know that I always recommend you get a copy of everything you sign. This is a good example of why. How are you supposed to know what your restrictions are if you don’t have a copy of your agreement?
But you didn’t keep a copy of your noncompete agreement, and now you have to figure out how to get a copy without alarming HR and management. There are several ways you might try. You’ll have to figure out which one works best in your company culture:
Ask to look at your personnel file: While some states have a law saying companies have to give you access to your personnel file, most don’t. There's none here in Florida. Still, sometimes employers will allow you to review your personnel file if you ask. Hopefully, the noncompete will be in there. What excuse do you give for asking? You could say you want to see what deductions you listed on your W-4, review your insurance election, or take a look at your last review as some examples of what might give you a non-alarming excuse to review the file. Of course, they could just be nice and give you a copy of the document you say you’re looking for, so this might backfire.
Ask a coworker for theirs: If you have a coworker you trust who keeps better records than you, you might ask them to share their noncompete agreement. Yours is probably similar, but if you started different years or have different jobs, the two agreements could be quite different. If you’re sure that everyone has the same agreement, this is a possibility that might work for you.
Look at court records: If your employer sues former employees for noncompete violations, then pull the case file. The coworker’s noncompetition agreement should be attached to the very first document, called something like a “Complaint.” This only works if you’re pretty sure the coworker had the same agreement as you.
Ask someone friendly in management: Sometimes, your boss or a friend in HR may be willing to get you a copy on the sly.
Ask for the agreement: I know you don’t want to tell an unfriendly supervisor or the evil HR lady you need a copy, but this is the only straightforward way to get a copy of your actual agreement. You might say you lost your copy and want to make sure you have a copy for your records (and this is completely true) or try to come up with some other excuse. Or, you can wait until you get a job offer and then ask for it. That way, you at least have a place to go if you get fired because they think you’re looking to leave.
What do you do if they refuse to give you a copy? I think it’s silly, but some companies like to hold onto the noncompete agreements employees have signed like they’re the secret recipe to KFC, but I don’t understand this. Companies should want employees to know what their post-employment restrictions are. HR folks should make sure employees keep a copy for themselves. How can they comply if they don’t know what the restrictions are? Nobody has ever been able to explain this to me.
If this happens to you, and you have a job offer or actual plans to start a business, I suggest sending them something like this: “It is my understanding that I do not have any restrictive covenants that would keep me from working for a competitor or forming my own business. If this is incorrect, please send me a copy of any and all agreements I signed or am alleged to have signed while employed by you within 72 hours from the date of this email. If I do not receive the alleged agreements by that time, I will assume I have no restrictions and will govern myself accordingly.” Obviously, this will set off alarm bells like crazy, so I don’t recommend this unless you have somewhere to go.
Sounds like lots of trouble to go through all this, huh? Next time, make sure you keep a copy of anything you sign at work, and make sure you take it home or keep it in your briefcase so they can’t grab it if you are fired. And don’t forget to read it carefully before you sign so you know and understand your post-employment restrictions. The time to negotiate is before you sign.
Post a Comment
I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.