Non-Compete Clause

Business By seskenn Updated 12 Aug 2011 , 7:16pm by seskenn

seskenn Posted 12 Aug 2011 , 3:15pm
post #1 of 17

I've recently applied for a job as a cake decorator at a local cake shop (first time ever!). The employment contract states if I leave for any reason I cannot take another cake decorating job with another cake shop (or own my own, etc) for three years after I leave this job. Is that standard? It seems a little excessive to me. Even in the tech industry it's usually only a 6 months non-compete clause.

I understand the owner doesn't want to invest a lot of time to "train me" only to have me run off after 6 months with all my newly acquired skills to start me own place, but if I don't decorate cakes for 3 years, seems what skills I have would get a little rusty (and I do have pretty good skills already IMHO!) icon_biggrin.gif

Appreciate any feedback or other experiences out there.

16 replies
jason_kraft Posted 12 Aug 2011 , 3:41pm
post #2 of 17

I'm not sure whether AR is more employer-friendly or employee-friendly when it comes to enforcing noncompetes, but to me it sounds like a 3 year noncompete would impose an undue hardship and would thus not be enforceable. I would speak with a local labor attorney to confirm though -- if they say it is unenforceable you could probably sign the contract as-is and just ignore the noncompete, although it's safer to have the employer remove the noncompete clause before signing.

Unlimited Posted 12 Aug 2011 , 3:42pm
post #3 of 17
Quote:
Originally Posted by seskenn

Is that standard? It seems a little excessive to me.




Notoo excessive. If it's enforeceable in your state, a reasonable amount of time is normally no more than 18 months. The agreement isn't suppose to prevent an employee from getting another job within any industry, it just limits employees from opening a similar business that is direct competition.

ShandraB Posted 12 Aug 2011 , 3:43pm
post #4 of 17

It may be different in different places, but that seems very excessive to me. The ones I have seen are usually for 1 year and they have a # of miles from the shop. For example, "within 30 miles" from your last employer. I would not sign an agreement like you are describing.

OhMyGanache Posted 12 Aug 2011 , 3:57pm
post #5 of 17

I would totally sign it... but I would write "I do not agree to this" in script handwriting so it looks like a signature at first glance. Do you think anyone really checks to make sure it's a signature? I've done this a few times with contracts I did not agree too, or I would cross out words and initial my changes. I haven't had anyone catch it yet. icon_smile.gif

jason_kraft Posted 12 Aug 2011 , 4:03pm
post #6 of 17
Quote:
Originally Posted by OhMyGanache

I would totally sign it... but I would write "I do not agree to this" in script handwriting so it looks like a signature at first glance. Do you think anyone really checks to make sure it's a signature? I've done this a few times with contracts I did not agree too, or I would cross out words and initial my changes. I haven't had anyone catch it yet. icon_smile.gif



If both parties don't initial the handwritten changes, then the changes aren't valid and the original language of the contract holds.

OhMyGanache Posted 12 Aug 2011 , 4:13pm
post #7 of 17
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by OhMyGanache

I would totally sign it... but I would write "I do not agree to this" in script handwriting so it looks like a signature at first glance. Do you think anyone really checks to make sure it's a signature? I've done this a few times with contracts I did not agree too, or I would cross out words and initial my changes. I haven't had anyone catch it yet. icon_smile.gif


If both parties don't initial the handwritten changes, then the changes aren't valid and the original language of the contract holds.




If it's a contract that only I sign, then the changes are valid. Any contract if ambiguous or unclear is to be read in favor of the person who did NOT draw up the contract. So if there is any question, the law will side with me. icon_smile.gif

jason_kraft Posted 12 Aug 2011 , 4:20pm
post #8 of 17
Quote:
Originally Posted by OhMyGanache

If it's a contract that only I sign, then the changes are valid. Any contract if ambiguous or unclear is to be read in favor of the person who did NOT draw up the contract. So if there is any question, the law will side with me. icon_smile.gif



If you are the only one signing a contract then you don't have a contract in the first place. If you mean the other party has already signed the contract, they would still need to initial handwritten changes for those changes to be valid.

Contract law is very clear on this...if you have a dispute the courts will throw out any changes that were not agreed to (initialed at the point of change) by both parties, you can't sneak in a change and hope the other person doesn't notice.

More info:
http://contracts.lawyers.com/contracts/Contract-Modification.html

OhMyGanache Posted 12 Aug 2011 , 4:29pm
post #9 of 17
Quote:
Originally Posted by jason_kraft

Contract law is very clear on this...if you have a dispute the courts will throw out any changes that were not agreed to (initialed at the point of change) by both parties, you can't sneak in a change and hope the other person doesn't notice.




Wanna bet? icon_lol.gif

I'm not sure why you think that a contract signed by one party isn't a contract. If I sign a promissary note (an IOU), it's only me that signs it. I would write "I, MyNameHere, promise to pay WhoeverIOwe the amount of $XXX on or before the date of WheneverIWinTheLottery". The party I owe the money to keeps the contract, but does not need to sign it. Perfectly legal and binding.

I would love for someone to try to enforce a contract that I never signed my name to (instead writing "I do not agree to these terms").

jason_kraft Posted 12 Aug 2011 , 4:41pm
post #10 of 17

I don't have experience with promissory notes so I can't speak to that, but even if another party does not need to sign the contract they would still need to agree to handwritten changes you've made to the contract. Otherwise you could add your own contract terms unilaterally, and that's not enforceable.

Quote:
Quote:

I would love for someone to try to enforce a contract that I never signed my name to (instead writing "I do not agree to these terms").



I think I see what you mean now, you are writing "I do not agree" in the space where you would normally write your name? That's a clever trick, but if you acted as though the invalid contract was in force (i.e. for an employment contract you went to work every day and collected a paycheck) and then tried to dispute the contract you might run into other issues wherein you could forfeit any benefit you gained from the contract (using the employment contract example, that could be your pay). Or the courts might interpret the contract to be valid anyway, I'm not a lawyer and I didn't see any case law on this particular issue so I'm not sure how it would play out.

Although if someone at the company did discover that you didn't sign your name on the contract you would probably be asked to sign the contract for real or be fired on the spot.

OhMyGanache Posted 12 Aug 2011 , 4:55pm
post #11 of 17

Speculation, speculation, speculation. It will go in your file, never to be questioned - guaranteed. Yeah, you could be fired - but at least you'd then be free to work elsewhere having never signed the contract. LOL!

As for anything else you said, it's not possible. There are laws regarding wages, it's not like an employer can sue you - they got the benefit of your labor, so the benefits went both ways.

TexasSugar Posted 12 Aug 2011 , 5:00pm
post #12 of 17
Quote:
Originally Posted by seskenn

Appreciate any feedback or other experiences out there.




Contact someone in your area, either a lawyer or someone else that would have knowledge or your states laws and what is enforceable or not enforceable.

ShandraB Posted 12 Aug 2011 , 5:06pm
post #13 of 17

I would talk to them about the terms of the contract and try to come to a better agreement. I do not think it is a good idea to try to be less than honest and sign something other than your name. Most people are reasonable about these things. If not, that will tell you something about how they will be as a boss.

I have had employees sign these types of agreements for my family's company (not a bakery) and we always check the signatures. This would be a great way to lose the job before you even start. I would not consider hiring someone who tries to get away with things like that.

Mexx Posted 12 Aug 2011 , 5:43pm
post #14 of 17

Three years seems an undue hardship (especially when it is your way of earning your livelihood) and likely wouldn't hold up in court. Others have told you here to speak with a lawyer or try to negotiate better terms with the bakery owner. Both are good suggestions. Suggesting that you write in changes hoping they won't be caught is childish and puts you in an untenable position with a new employer once those changes are caught. Speak up about what you need/want. If the employer won't bend, then perhaps this is not a place you'd really like to work any way. Good luck.

inspiredbymom Posted 12 Aug 2011 , 6:44pm
post #15 of 17

My husband has to sign non competes all the time in the tech industry. So did a friend of mine who worked at the same place. My friend left and they found out that she went to a competitor. They sent their lawyer after her since she had been the one to leave they could enforce. If they would have let her go, they would not have been able to keep her from working in the business. She has to be able to support herself. However, even with all of the advice, the best advice is to contact an attorney. They would know better what is acceptable in your area and what is the legal length of standard non compete contracts.

cakegrandma Posted 12 Aug 2011 , 7:11pm
post #16 of 17

I too think it would be best to check with an attorney, just to know what your rights are. Also 3 years is too long to not be able to work in your field.

As for writing you do not agree where your signature is......It is a sorry manager, owner that does not watch a contract they want upheld (if lawful in that particular state) being signed. I have never put a paper in anyone's file with out watching them sign everything or have everything signed correctly.

evelyn

seskenn Posted 12 Aug 2011 , 7:16pm
post #17 of 17

Thanks for all the good tips everyone has posted. I will contact a lawyer and my local employment office as well to see what they say. I have talked with my potential employer about my concerns and we are working on something more agreeable to both of us. Since I'm new to this I just wanted to make sure I wasn't way off base....and it seems I'm not.

And no, I don't plan on starting my new job by being anything less than honest with my employer! Just not something I can do.

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