After Negotiating Archives

Non-Compete or Non-Solicit? Use “C.A.T.C.H.” to Understand It

Published on August 16th, 2016 by Alan L. Sklover

An Effective Way to Analyze Your Restrictions

“Limits, like fear, are often an illusion.”

– Michael Jordan

ACTUAL CASE HISTORY: For two weeks we were in a pitched battle in Federal court, trying to convince a Federal Judge to negate a non-competition agreement. Both sides had submitted legal briefs, and the Federal Judge ordered “oral argument,” which is each side giving its position, and the Judge hammering away at each side’s arguments with his questions.

Our client was a salesman in the field of medical devices, specializing in the sale of manufactured, artificial heart valves to hospitals for surgical replacement of damaged valves. After leaving his prior employer, he took a new job, and was doing quite well – until he was sued, and his new employer placed him on “Suspension – Leave of Absence” until the case was over.

In preparation for the upcoming “oral arguments” in perhaps my tenth reading of the non-competition agreement, I discovered something that no one else had discovered before, not even the Judge: the non-competition agreement was not, in fact, a non-competition agreement.

My careful reading revealed that working for a competitor was not, in fact, prohibited. What the supposed non-compete agreement prohibited was “working for a competing medical device manufacturer, anywhere in the eastern half of the United States, that sells to hospitals replacement heart valves based on the same technology.”

That last phrase, those final five words, and their importance, had somehow escaped notice by several people. There was no prohibition against working for a competitor, but only on working for a competitor while selling heart valves based on the same technology. The restriction was on using a certain technology more than it was on working for a competitor.

In fact, the new employer did not sell manufactured, artificial heart valves, but instead heart valves derived from the hearts of pigs. Neither the lawyers nor the Judge were familiar with the technology, and just assumed the same technology was used. Fortunately, I recalled hearing of the distinction during my initial, in-depth consultation with my client.

We asked permission to submit a supplemental brief to the Court on this very point, and the Judge permitted it. After conferring with their client, the former employer’s attorneys withdrew the case. Noticing just five words – based on the same technology – that’s all it took.

LESSON TO LEARN: When it comes to non-competition and non-solicitation agreements, “The answer to your question is almost always right there, in the words.” Reading dense legal agreements can sure put a lot of people to sleep – including lawyers. That’s always the case in law, but there is no substitute for careful reading and analysis, especially when it comes to non-competition agreements and non-solicitation agreements.

I have seen it time and time again: the applicability, effect, validity, and duration of non-competition and non-solicitation agreements being misread and misunderstood, and for this reason unnecessarily limiting the client’s career by false fears. I’ve seen it time and again: highly qualified and experienced lawyers telling their clients “Sorry, there is nothing we can do” when, in fact, all that is necessary to win a person’s employment freedom is to read and analyze carefully.

To assist you in doing that for yourself, in my 30+ years of handling non-competition and non-solicitation disputes, I’ve devised a rather simple way to analyze non-competition and non-solicitation agreements. It’s what I have come to call “C.A.T.C.H.,” which stands for (1) Competition, (2) Activity, (3) Time, (4) Conditions, and (5) Horizon.

This is not the usual, hackneyed “Geography, Duration, Scope” legal analysis that so many lawyers will refer to when discussing non-competition agreements. What they would be talking about is that a Judge will often look at the reasonableness of the restrictions’ “Geography, Duration, Scope” and cut one or more of them down if the Judge thinks they are unreasonable.

Our “C.A.T.C.H.” analysis is more immediate, more valuable and more important: “Does this non-competition or non-solicitation agreement even apply to you?” Might careful reading and analysis reveal you have no reason to hire an attorney, due to potentially unfounded fear based on an incorrect analysis? Why hire an attorney, and consider going to Court, if you really don’t need to? More importantly, why turn down a job offer, or not seek one, if you are not really restricted?

This endeavor is not “legal nit-picking.” Instead, it is the essential task of every employed person: to protect your employment freedom, and to utilize your business skills, experience and relations to your very best advantage.

I hope you find my “C.A.T.C.H.” analysis helpful, and its title a little “catchy.”

WHAT YOU CAN DO: Here’s eight steps you can use to help yourself understand whether or not, how badly or not, you may be restricted by a non-competition agreement or non-solicitation clause you have signed, or you may be asked to sign. And, too, they may help you understand how to get around any such restrictions. As Michael Jordan says, “Limits, like fear, are often an illusion.”
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“Problem Not Yet Solved; What’s My Next Step?” Your Five Alternative Next Steps

Published on April 5th, 2016 by Alan L. Sklover

“One of the secrets of life
is to make stepping stones out of stumbling blocks.”

– Jack Penn

ACTUAL CASE HISTORIES: A very commonly asked question is this: “I have followed your suggestions, but it has not yet worked . . . What do I do now?

The writer usually explains that her email memo to management “pushing back” against a dishonest performance improvement plan (“PIP”) did not get her what she wanted. Or, his request for better terms of severance achieved only minimal results. Or, perhaps, her attempt to get a waiver for a non-compete agreement received no response. Or maybe, even, his complaint of discrimination was essentially ignored.

There are five simple “next steps” available in each of those problem situations, and others, too, that remain unsolved despite your best efforts. While choosing which “next step” among them is the best one for you, surely one or more of them is the wisest one for you. And, in fact, you can try all five if you wish.

What needs to be kept in mind is that there is no problem without a solution. And many different approaches can be tried to solve a problem. It might even be your second, third or fourth attempt to solve a problem that turns out to be the most effective.

LESSON TO LEARN: Maybe you did not immediately get the results you wanted to get when asking for removal of a negative reference from your HR file. Or maybe you were turned down in your first request for an investigation of your complaint of harassment. Or, maybe, too, your repeated complaints of unsafe working conditions were simply ignored. In each of these instances – and many others, too – you would likely be frustrated, demoralized, perhaps even angry.

As the simple saying goes, “Don’t get angry . . . get even.” Or, as we are reminded, “If at first you don’t succeed, try, try again.” Or, perhaps, bear in mind the adage, “There are more ways than one to skin a cat.” (My apologies to all of you cat lovers out there.) Don’t give up. Don’t get frustrated. Just keep going.

WHAT YOU CAN DO: Here are your five alternative next paths available to you. Coincidentally, each path forward ends with the letters “ate,” as do the words “navigate” and “negotiate.” Might it be pure coincidence?:
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“After severance, what you CAN and CANNOT say”

Published on January 13th, 2015 by Alan L. Sklover

Question: I was laid off a few months ago in what they called a “position elimination.” While I disagreed that is why I was chosen, I did, with your blog help, get a better package. Thank you!!

Actually, it came at a good time in my life, as my husband was ill and it gave me an opportunity to take care of him. I signed a severance agreement in order to get my severance monies. Now that my husband is better, I am free to go back to work. I am now looking for a new job.

What can I say, and what can’t I say, about why I left?

Name Withheld
Cheyenne, Wyoming

Answer: Dear Blog Visitor: The first item you should carefully review to determine what you can say, and what you cannot say, is your severance agreement. That said, almost all severance agreement express – or imply – what you can and what you cannot say, about your experience on the job, and why you left. Here are ten things you CAN say, and CANNOT say, about leaving your last job:
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“If only the employee signs the severance agreement, is the employer bound by it?”

Published on December 30th, 2011 by Alan L Sklover

Question: If a severance agreement was received and signed by the employee, but then not countersigned by the employer, is it binding on the employer?

O.K.
Point McKenzie, Alaska

Answer: Dear O.K.: Your question is of particular interest to me, because I ask myself that very same question perhaps once every week, when helping clients with severance matters.           

1. As a general “rule” of basic contract law, if an “offer” is presented, and then “accepted,” the “agreement” is binding on both sides. When we seek to understand legal matters, it’s often best to go back to “basics.” During the first week or so of “Contract Law” class in law school, we learn that “Offer plus Acceptance equals Binding Contract.” This is how most severance agreements are written: “To accept this offer, place your signature below and return it to me within 21 days of today’s date.” If your severance agreement has words to that effect, my “tentative” answer to your question is “Yes, both sides are bound after the employee signs the severance agreement and returns it to the employer – whether or not the employer signs it.

2. However, before concluding that the basic rule applies, we must carefully review the agreement – every word of it – to see if it might say that the basic rule does not apply here. So, for example, your severance agreement might say something like “This agreement is not binding on either the employer or the employee unless both have placed their signatures on it.” The effect of such language in the agreement would be, in effect, “The basic rule does not apply here.” My experience is that no more than 5% to 10% of severance agreements have words like that in them.  

3. By not signing the severance agreement, your employer may be playing a cynical “game”; it goes this way: “I will consider it binding if to do so is good for me, but I won’t consider it binding if it turns out I don’t need to.” I have several times seen this happen. The employer tries to have it “both ways,” or at least whichever way is more convenient for him or her. To prevent that, you may need to send him or her an email that says, in effect, “You cannot have it both ways. Either we are both bound, or neither of us is bound. I need to hear – by email – within 48 hours which way it is. If I am not bound, then I don’t have to honor any of my promises in the agreement, including the release of claims in it.”

4. If the words of the severance agreement follow the “general rule,” then I suggest you send your former employer an email asking when the counter-signed agreement will be returned to you. Whenever we can, we like to get clarity in our relations with others. If your severance agreement seems to follow the “general rule,” and does not have any words in it that say otherwise, I suggest you send your employer an email that says, in effect, “We are both bound, because the agreement constituted an ‘offer,’ and my signature constituted the ‘acceptance.’ When can I expect to receive my severance payments?” That will probably help move things along toward clarity.                                                                

O.K., these things sure should be a lot easier than they often are. But – hey – then we would have so many lawyers out of work!! (Just kidding.) Unfortunately, “people will be people,” and we all have to find ways to work together. I hope this explains things for you, so that you can help yourself get clarity in this situation.

Thanks for writing in. I hope you will tell your friends that there is a place that is “there” for them when it comes to  standing up for yourself” at work.

Please remember: if you click to our advertisers, and use their services, they help us “keep the lights on” for this blog.               

Best,
Al Sklover

Alan Sklover’s Timeless Classic, Newly Updated and Revised

Fired, Downsized, or Laid Off:

What Your Employer Does NOT Want You to Know
About How to FIGHT BACK

Now available by Instant Download to Your Tablet
(Ipad, Nook, Kindle, etc.)

OR

Instantly Downloadable PDF to Your Home Printer

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Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2011 Alan L. Sklover, All Rights Reserved.

Must employers provide a reason for terminating an employee?

Published on April 2nd, 2011 by Alan L Sklover

Question: I was laid off due to a position elimination on 10/05/10. I would have celebrated my 20th year anniversary as an employee of the company on 03/09/11, just five months later.

I recently found out that my position – the one they had eliminated – was reinstated and posted on 02/14/11.

I believe that “position elimination” was nothing more than a way around firing me, which my employer had no grounds to do.

Your thoughts? Thanks. 

Leigh
Castle Rock, Colorado

Answer: Dear Leigh:   

Your question raises two important aspects of the employment relation that people need to know about:  

a. It is illegal for an employer to terminate an employee in order to deny them important benefits – such as vesting in pensions or qualifying for retirement. In your letter, you did not mention whether (i) you would vest in pension or retirement benefits, or (ii) you would have earned some other special benefit, such as a grant of stock or special bonus, on your twentieth anniversary of employment. Federal law, and probably Colorado state law, too, both say so. While employers are free to terminate employees for many reasons, if this is the reason you think you were terminated, you may have a very important claim against your former employer. 

b. If an employer lies about the reason for a termination, that is considered proof that they have violated the law. There is an old saying that “The best proof of a crime is the cover up.” To use more “legal language,” if you can show that the reason your former employer offered to terminate your employment is probably false, made-up, or concocted, then that alone is considered proof that there exists an improper reason. Said differently, “Why else would your former employer offer a fake reason for your termination unless it knew the real reason was illegal?”

To me, it is hardly likely that your employer felt it needed to reduce headcount in October, and then changed its mind in February. Instead, it seems far more likely that there may be something going on here that “cannot stand the light of day.”
  
c. However, if you signed a Release Agreement when you left your employment in return for severance, it is likely you cannot raise any claim now. When employees are fired, downsized or laid off, they are frequently offered severance payments in return for a Release of claims. That Release almost always includes a requirement that you agree that you will never sue your former employer. If you signed such a Release Agreement to get severance, then you have already likely given up any right to sue your employer for this, or any other reason.
 
d. Releasing legal claims, though, does not mean you have released moral claims, at least not “in my book.” Many times I have counseled people in your circumstances that, while you cannot sue your former employer, there is no reason I know of that you cannot write a letter to your former employer’s Board of Directors, and tell them you think you may have been duped, and despite the fact of your release of legal claims, they should recognize that for moral reasons, they should make sure that you are given recompense for what was taken from you.

e. It is for this reason that, when reviewing a Severance Release Agreement, we try to think of “what’s not in the agreement” more than “what is in it.” Many clients say to us, “My severance agreement looks so simple.” I tell them, “Yes,  but looks are deceiving. I need to know more about you, what happened to you, and why you were chosen for termination, than I need to read the agreement. If you’re giving up all of your claims, I need to know what your possible claims are.” It is my job to identify possible legal claims, and to then raise those legal claims, before the client signs away all of his/her legal claims in a Release Agreement.

If you did not sign a Release Agreement, I strongly suggest you consider standing up for your legal rights at this time. If you have signed a Release Agreement, while you really don’t have any legal rights to stand up for, I still think violation of moral rights will not be tolerated by most people, and this may be your path to redress.

Your letter gave me an opportunity to illustrate important points for other readers. Thank you for writing in. And welcome to our “family.”

Best,
Al Sklover

Alan Sklover’s Timeless Classic, Newly Updated and Revised

Fired, Downsized, or Laid Off:

What Your Employer Does NOT Want You to Know
About How to FIGHT BACK

Now available by Instant Download to Your Tablet
(Ipad, Nook, Kindle, etc.)

OR

Instantly Downloadable PDF to Your Home Printer

FOR EITHER METHOD JUST [CLICK HERE]

© 2011 Alan L. Sklover, All Rights Reserved.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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