Oh yeah, I’m aware of the new style of employment, and it may prove to be a good thing. But you’re stuck with the old folks, like me, who are still in the old school and already done our 30 years… So, until we all die off, you gotta put up with us. It’s part of the transition. I’m AARP, and I vote.
Of course there are those troublesome service workers (janitors and such) which no one’s figured out how to deal with. Labor camps? I dunno.
Really? I also work for a company with vested retirement benefits. But if fired “for cause” I lose all the company contribution, which is substantial.
Are you sure you keep it all?
I once won an unemployment case for a guy based on similar circumstances, the employer insisted that he sign a “request” for what essentially amounted to a demotion. When he refused they fired him. They tried to fight his unemployment claim based on insubordination. They lost. Of course, it’s not like they had to hire him back or anything. It wasn’t a union shop, so employment was at-will. He got unemployment benefits and that’s all.
In his case, though, there was no reason for him to sign the document. The case would have had a different result if his signature had been required by his existing employment agreement or necessary for the continuation of his existing job, as the release in the OP probably is.
Yes, in my mind, the enforcement of these provisions is really dependent on the mood you catch the judge in. I do not work in the field that much, but I think the facts of each particular case really tend to color the outcome (in effect, making the law) even more than they do in other types of cases.
Different states have different variations, and it seems that even within the same state, there are many different ways to describe when geographical and temporal scope are reasonable or not. Sometimes it seems that it depends on whether it prohibits the former employee from working or otherwise exercising his trade. Sometimes it seems that it depends on whether the scope was reasonably related to the employer’s business base. Sometimes it seems that it depends on whether the limitation period was consistent with the amount of time necessary to train the former employee’s successor. And so on.
Yes. These cases are very fact dependent, which is one of the reasons that people say they are hard to enforce. I’ve handled several cases involving noncompete agreements and it has always been expensive and time consuming.
In some kinds of cases, especially those involving prenuptial agreements a court will look at the amount of time allowed to review the contract and whether both parties were able to consult with a lawyer as factors determining whether the contract was signed under duress. *E.g., * http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nh&vol=0204\yanna031&invol=1
I’m unaware of any common law right to counsel before signing a contract.
OTOH, back in the day, before the objective theory of contracts was adopted, a person could argue that there was no meeting of the minds, and that the contract wasn’t binding. The objective theory undermines this approach. See generally, http://en.wikipedia.org/wiki/Contracts
OTOOH, the OP is proablay talking about a waiver–not a contract. A waiver must be knowing and voluntary. (Unable to find satisfactory citation within a reasonable time-frame). Some courts interpret this standard to require that the person signing the waiver actually know what they are signing. This can sometimes offer a defense.
There are also at least two special cases involving waivers where more elaborate requirements are imposed:
Couldn’t agree more, both with this and the prior comment about judicial decisions varying widely. I practice in this area, and my stock speech to clients makes this point.
A Human Resources person once told me that such “releases” were really use to inform people that testing is done and is treated seriously. What better way to tell people not to use drugs but to tell them “we test randomly!”
This is incidental to the OP, but I figured I’d mention that Microsoft is suing Google after Google hired one of Microsofts top executives, mainly due to a non-compete clause. It’s getting a lot of play in tech circles for sure.
What you’re referring to are, I think, pre-employment agreements. Those are entirely voluntary.
What I speak of is offered at the time of testing, after the employee has invested time in the company, and are definately not voluntary.
My company, BTW, only tests employees in so-called “safety sensitive” jobs, thereby excusing most management personel.
Which allows me to seque nicely into the intersection of these inquiries: Garrity v. New Jersey, which addressed the situation of: “Here are your Miranda rights. Now, talk to these officers, or you’ll be fired.”
In Garrity, several police officers were being investigated for fixing traffic tickets. They were interrogated after being read their Miranda rights, but then told although they had the right to refuse to answer questions, if they exercised that right, they would be fired. They spoke with interrogators, and subsequently their statements were used against thme at trial. They appealed, claiming the statements were involuntary.
Please, Bricker, break it to me gently.
I would hope the court ruled in favor of the cops, but I still naively wish for justice in the justice system.
This heavily conservative “you have that right, but there can be consequences” thing is getting tiresome.
There’s no way to lose it, except consider that for my hire date it’s a combined 80 years age+time-in-service. So… I’d be looking to be 74 before being able to collect any of it. And the cash portion based on just over five years would be rather small. And the 401(k) – even with the vested portion – isn’t a whole lot to retire on at my age, so “not losing it” doesn’t really amount to anything at my age. We also say at my company that no one ever gets fired. Union folks get laid off, but the rest of us leave via attrition, until recently (and they were management).
That does “Restoreth my faith…”
Now I hope that, if they indeed broke the law, they were punished through legitimate means. I, and my surrogate daughter Lisa Simpson, wish that.
I wondered about that too, but didn’t Bricker’s cite answer that question? Or are we back to the whims of the court.
You realize, I hope, that someday all you legal types, including judges, are going to be replaced by computer programs.
