Non-Compete’s and Confidentiality Archives

Voluntary – Key Words & Phrases

Published on February 19th, 2019 by Alan L. Sklover

Sklover Working Wisdom keywords and phrases

Be on the lookout for . . .

“Voluntary,” as in “Voluntary Departure,” “Voluntary Resignation”
or “Voluntary Waiver”

You’re quite likely to find the word “voluntary” in several work-related legal documents. If you do notice it, that word may be very advantageous to you.

Generally speaking, “voluntary” means “done on one’s own free will.” It is synonymous with discretionary, unforced and optional. In legal documents, it often suggests that the act described was not required, not coerced, and not demanded.

Let’s say that, according to your employer’s Annual Bonus Plan, you are not entitled to your annual bonus if you “voluntarily” resign before the day it is paid. What if, two weeks before bonus payment date, you resigned and left your job in fear that your boss might beat you up in one of his infamous uncontrolled rages?

Was your departure “voluntary?” I’d say no. Are you entitled to your annual bonus? I’d say yes, although I’m confident that most employers would disagree.

You have a strong, reasonable and likely winning argument that the bonus is yours, so long as you spot, appreciate and point to the word “voluntary.”

In Repayment Agreements, you might promise to repay your employer in, as examples, a Sign-on Bonus Agreement, a Relocation Expenses Policy, or a Tuition Assistance Plan if you “voluntarily” leave before two years of service. What if you left earlier than that because, all of a sudden, your salary was reduced by 40%, and your family likes to eat three meals a day? (Some kids demand 4 or 5!!)

Is feeding your hungry family “voluntary?” I’d say No. Was your departure to take a better paying job truly “voluntary?” I’d say No. For this reason, you have a very good, and probably winning, basis to argue, with likely success, that your repayment is not required.

So, in this circumstance, too, you may very well not have to repay any sign-on bonus, educational assistance, etc., so long, that is, as you spot, appreciate and raise in your defense the word “voluntary.”

The same goes for whether a Non-Compete Agreement is valid or void, according to its own words. If the non-compete says it is valid if you “voluntarily” leave your job, and you can show that you are allergic to the new paint used throughout the office, then it is void as to you, so long, that is, as you spot, appreciate and raise the word “voluntary.”

There are many other legal documents that may contain the word “voluntary.” Look for “voluntary” in any and every workplace document, whether in an agreement, a company policy, an Employee Handbook, Stock Award, or other document.

You may be VERY GLAD you did.

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Garden Leave . . . Is Negotiable

Published on February 27th, 2018 by Alan L. Sklover

 
“Logic will get you from A to B.
Imagination will take you everywhere.”

– Albert Einstein

ACTUAL CASE HISTORIES: A “Garden Leave” obligation is a promise that you will remain on your job, after resigning, for 30, 60, 90 or more days prior to departing during which (a) you may be required to work in the office, (b) you may be told to remain at home “tending your garden,” (c) in either case, while you are subject to termination at any time, at the discretion of employer.

For perhaps 20 years I have seen “Garden Leave” provisions in offer letters, employment contracts, bonus agreements, retention agreements, and almost every other kind of workplace agreement. Many clients chafe at these restrictions, as they both delay their moving on to hopefully “greener pastures,” and frustrate the wishes and plans of their would-be next employers.

A few years ago I began to suggest to clients facing Garden Leave restrictions that they attempt to negotiate to reduce the duration of their Garden Leave’s restriction. Increasingly, clients who try to do so are meeting with success. All the time? No. But with increasing frequency? Yes.

I now suggest to every client who is planning to resign from a job, but facing a long Garden Leave restriction, that they attempt to reduce their Garden Leave period through negotiation. Why not? There’s little to lose and so much to gain.

LESSON TO LEARN: With few exceptions, everything in life – and that includes work life – is negotiable. And by negotiation, I mean motivating your manager or employer to view what your seek to be in their interests as well as your own.

The same first principle that governs any negotiation – that a person will likely pursue what that person perceives to be in his or her best interests – governs this negotiation, as well. If you can change the way a person perceives her or his own interests, then you can motivate her or him to do just what you want them to do. Some people say, “Oh, gee, that’s just Sales 101 . . . that is, if you buy a certain toothpaste, you will have a better social life. ” Well, what applies to toothpaste applies to Garden Leave provisions, too.

And there’s no downside to making any request, so long as you present it with “The Three R’s”: (1) Be Respectful. (2) Be Reasonable, and most importantly, (3) accompany your request with a compelling Rationale.

As I have many times said, “You can lead a horse to water, but you cannot make it drink . . . but if you put the right “salt” into its mouth, it will feel thirsty, and, on its own, it will look for a stream.” In the Garden Leave context, all you have to do is decide who is the right “horse,” and what is the right “salt.”

WHAT YOU CAN DO: When planning to resign, if you are subject to a Garden Leave obligation, you should consider requesting that its length be reduced. Here are some thoughts that might help you do so:
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“Injunctive Relief” Clauses in Contracts – What Do They Mean?

Published on December 13th, 2016 by Alan L. Sklover

 
“Perhaps all pleasure is only relief.”

– William S. Burroughs

ACTUAL CASE HISTORY: Most employment contracts have a section in them, usually toward the end of the contract, labeled “Injunctive Relief,” or a phrase containing similar sounding words. It is inserted into employment contracts by employers’ legal counsel.

Contrary to many of my blog posts on clauses in employment contracts, it is a welcome change of pace to share with readers that this clause, in particular, is not very dangerous, risky or frightening. Those who commonly handle cases in which “injunctive relief” is requested will likely admit these clauses are of limited utility.

This is what an “Injunctive Relief” clause generally looks like:

“The Employee and Employer agree that, if the Employee breaches or threatens to breach his or her obligations not to compete, or not to violate confidentiality, it would cause irreparable injury, and the amount of money damages would be difficult to establish. For this reason Employee and Employer agree that, in such event, the Employer is entitled to Injunctive Relief to prevent or restrain any such breach.”

Even though they do not pose any danger or risk, employees should understand what these clauses mean, why they are inserted into employment contracts, and the few points employees might raise in response.

LESSON TO LEARN: Even though “injunctive relief” clauses are not usually harmful to employees, understanding what they mean can only help. To understand “Injunctive Relief” contract clauses, let’s start with some basics:

A Brief History –

Many years ago, we used to have two kinds of Courts, one kind called “Law Courts,” in which people or companies sued each other for money, and the other kind called “Equity Courts,” in which people or companies sued each other for “equity,” which is another word for “fairness.” Suing for “fairness?” “Fairness” lawsuits generally seek a Court to Order someone to do something or stop doing it. Perhaps injunctive relief can be best illustrated by this example:

Suppose two farms sat next to each other for 200 years. Many years ago, property deeds would often describe property boundaries as “from the oak tree to the edge of the pond,” or “the boundary line is the stream.” Using the “stream-boundary” example, suppose one day a big storm deposits so much rain that the stream overflows, and makes a new path, which now cuts one of the farms in half.

Did the original farmers intend the boundaries of the two farms to be changed whenever a big storm came around? Or was it their intention to use the stream path only as a convenience, and later disregard the effects of droughts, storms and even beavers? Did the deed say “wherever the stream might meander?” If two farmers could not agree on who owns how many acres, and one started to till the soil on the disputed land, the other could go to Court asking the Judge to Order him to stop, and declare whose land it is.

Granting “Injunctive Relief” is entirely within a Judge’s Discretion. –

Years ago, the two kinds of Courts were combined into today’s Courts, but we can still seek either “money damages” or “equitable relief.” In today’s employment law, “injunctive relief” is commonly sought by employers seeking a Court Order to (a) stop a current or former employee from sharing or using “trade secrets” or (b) stop a former employee from violating a non-competition agreement.

When employees seek Injunctive Relief (which is not very common) it is most often to seek a Court Order demanding a former employer stop interfering with the employee’s new employment, or disparaging the former employee.

Whether or not to grant such Injunctive Relief is entirely up to the Judge, who must decide if it is necessary and if it will impose an undue burden on the freedom of a person to work and earn a living. The Judge looks at many different things to decide what is fair, and two Judges could easily differ on that conclusion. He or she actually “weighs” the effect on both parties, in what is actually called a “balancing of the equities.” It literally is “the scales of justice” in action.

Such Provisions are usually “toothless tigers,” but any kind of “tiger” can seem scary. –

The important point here is that Courts hardly ever give much credence to what the employer and employee agreed in a contract months or years earlier regarding what the Court should do. It is the facts, events and circumstances at the time that a Court is concerned with.

So, you may ask, “Why does an employer insert an Injunctive Relief clause into an employment contract, and why would an employee care?” In my experience, Injunctive Relief clauses are instruments of fear, nothing less and nothing more.

They are inserted into employment contracts to create the illusion that even a “possible,” “potential” or “threatened” violation of an employment contract will result in a Court Order against the employee, like the Wizard of Oz behind the curtain who really had no power. It is a kind of legal bullying, intended to send an employee the implicit message, “Don’t even THINK of not honoring these obligations!” But, to continue the analogy, you can never be sure a tiger is truly “toothless” unless you get so close to the tiger that you can actually see into its mouth.

No matter what, you should carefully read “Injunctive Relief” clauses, not so much because of what they say, but sometimes other things – potentially risky or expensive to you – that may be woven into the otherwise “toothless” language.

WHAT YOU CAN DO: When looking over an employment agreement, read every section and every word, even if it seems to make you sleepy to do so. Don’t be fearful of Injunctive Relief clauses, because they do not represent any real risk to you, but do beware of other items that might be inserted into them:
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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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Non-Solicitation Does NOT Mean Non-Communication

Published on May 25th, 2016 by Alan L. Sklover

Keep in Touch with Clients During Non-Solicit Periods

“ Make new friends but keep the old.
One is silver and the other gold.”

– Traditional Girl Scout Song

ACTUAL CASE HISTORIES: In recent years, there has been an undeniable increase in the number of employees, worldwide, who are required to sign “non-competition” agreements by their employers. Recently, though, “non-compete’s” are facing greater scrutiny and skepticism than ever before among many Judges, as non-compete agreements frequently entail keeping a working person – and probably a person supporting a family – out of work without a really good reason. Thus, employers and their lawyers are finding the enforceability of non-compete agreements less and less certain as time goes on.

As a result, with the same goal in mind – not losing clients and customers when an employee leaves – many employers are changing tactics. The increasingly popular tactic is to use “non-solicitation” agreements, instead, which permit employees to work for any employer of their choice, but requires them to refrain from “soliciting” business from the former employer’s customers and clients for a period of time, commonly from three months to 24 months. These are finding a more hospitable response from Judges when they are asked to rule on their enforceability.

Judges are far more likely to enforce non-solicitation agreements because they do not mandate the employee’s inability to work in their field of endeavor, but merely avoiding going after the business of the employer’s clients.

Like any other restrictive agreement, employees must abide by the terms of their non-solicitation agreements. That said, we have found, that many of our clients have not only avoided “soliciting” business from their former employers’ clients, but have also avoided any contact or communications with them whatsoever, which is entirely unnecessary and often quite self-defeating.

Out of a gut-level – and irrational – fear, many employees completely shut down their communications with their former customers and clients, without good reason, and by doing so decrease the chances that, after the non-solicitation period has expired, they can promptly resume the business relation previously enjoyed, as well as the fruits of it.

Don’t unnecessarily limit yourself. Maintain your valuable and hard-won client relations while under the restrictions of a non-solicitation; just don’t solicit. It’s that simple.

LESSON TO LEARN: Here is the text of a commonly worded non-solicitation agreement:

    “Employee agrees that during his or her employment by the Company and for a period of one (1) year after Employee has ceased to be employed by the Company for any reason, Employee shall not, without the prior written consent of the Company, directly or directly solicit, divert or take away, or attempt to divert or take away, the business or patronage of, the Company’s clients, customers, or accounts, or active or prospective clients, customers, or accounts.”

While it may sound confusing, it is easier analyzed if you simply “parse” it – which means cut it up into “bite-sized pieces.” As an experienced employment lawyer, all I see is (1) one year, (2) will not in any way, (3) try to solicit or take away, (4) business, from (5) the company’s clients and prospective clients. Does it say “Stop all communications with customers and prospective customers? No, nothing like that . . . so long as the communications do not “seek to solicit or divert business.”

That distinction is an important one, because the business and personal relations you may have established in dealing with customers and clients are a good part of your value in your field. Those relations do not have to be “ended cold,” but can be “kept warm” until the non-solicitation period of time is over.

Having signed a non-solicitation agreement does NOT mean that you cannot communicate with your employer’s clients. Nor does it mean cannot maintain your personal relations with your former employer’s clients. And, too, it does not mean you cannot plan to solicit their business. It just means that you cannot directly or indirectly “solicit” them or their business.

Far too many people who are under non-solicitation restrictions unnecessarily limit their activities and communications, and in doing so unnecessarily limit their career success, after signing a non-solicitation agreement

If the non-solicitation agreement you signed is worded like the one above, written only with “solicitation” in mind, then you are free to do everything else. So long as you do it very carefully, it may be very much in your interests when later – after the non-solicitation period has expired –
soliciting their business.

Life is hard enough. Don’t defeat yourself. Do keep in touch with the clients of your former employer. By continually keeping in touch you only increase your chances of them becoming your clients when “the coast is clear.”

WHAT YOU CAN DO: If you have signed a non-solicitation agreement, bear these thoughts in mind, and don’t shortchange yourself:
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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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