First of all I know that companies can fire you for any reason. That being said, my SIL works at Walmart and is looking for a second job. According to Walmart policy, she cannot work anywhere that competes with Walmart. Of course Walmart interprets “competition” very liberally so you are limited in second jobs. Target is out but so is any grocery store (because Walmart sells food) or pharmacy like Rite-Aid.
Here’s the twist: working at Walmart isn’t completely at-will. You have to be written up 3 times for the same offense so the real question is: is it legal for a company to restrict where you can work as a second job? Obviously ignore non-compete clauses in contracts because this doesn’t apply here.
I’m not a lawyer. Guessing this should go to IMHO, and I’ve notified a mod.
Saint Cad, your S-I-L really needs to talk to an employment lawyer if she’s thinking of leaving and is worried that the noncompete may interfere with her job prospects. Labor law is largely a creature of state law in this field, and different states can be more or less maniacal on enforcing these. Depending on the state, a company can restrict where an employee may work, for a limited time, in a limited geographical location, in a limited subset of jobs.
It depends on the nature of the noncompete agreement. Are the geographical, temporal, and nature of subsequent employment narrowly defined? From the CLE I’ve looked at on this subject in employment law, courts have been more likely to uphold the agreement if it’s narrow versus if the restrictions are broad. Was consideration offered to secure her agreement to the non-compete? IIRC, different states take different views on what counts as fresh consideration. Continuing to work there counts for some. A bonus or other compensation is required for others.
It also depends on what she does for Wal-Mart. Is her employment with W-M such that she would inevitably disclose W-M proprietary information? Is her employment such that a judge would find it unfair to W-M if she were immediately able to work for a competitor? Or is she someone who W-M should expect to be able to leave and shouldn’t be unfairly disadvantaged by her doing so? Different states draw the line in different places.
In short, the agreement may not be as firm as the black letter of the agreement may state, and she really needs to consult an attorney for more specific helpful information on her situation.
Why would we ignore non-competes in contracts? The Wal-Mart policy you describe (which I’m taking your word on) would have been part of the employment contract signed by your SIL upon taking the job. Without that contract, there’s no grounds for Wal-Mart to restrict future employment elsewhere.
Now, plenty of non-competes in employment contracts are considered unenforceable. I understand that California courts are particularly well-known for striking down non-compete clauses that are overly restrictive. But each jurisdiction and contract have their own nuances.
The OP is talking about a second job and policy should be sufficient in this case because it is at-will employment, if they find out, they’ll fire you. I doubt a non-compete contract limiting future employment could be maintained for most WalMart employees.
Just because Wal-Mart has an internal policy on terminations doesn’t mean her employment isn’t at will. They can unilaterally change their polices at will.
Unless she works for corporate it’s extremely unlikely she signed an actual contract. It might have been several pages and detailed her conditions of employment, but I’m sure somewhere there was a clause saying “this does not constitute a contract; employment is at will”.
I don’t know where you live, but in the half dozen states in the US I’ve lived in work contracts are rare to nonexistent for anyone below management. I wouldn’t expect a shelf-stocker or cashier at Wal-Mart to have one.
What TriPolar said. It’s not a “non-compete agreement” it’s part of the employee handbook that says “you can’t work for us and a competitor at the same time”.
It’s still crappy, because there’s no real reason a Wal-Mart cashier would be able to give away company secrets to Rite-Aid. But if that’s the way Wal-Mart works, then she should respect it. Or plan on getting fired if a job at a competitor comes to light.
Depends on what you mean by “work contract” - there are legal documents one signs when accepting a job, which form some kind of contract between employer and employee. Even in at-will states, I believe.
I’m long out of practice at this, though - I switched jobs recently, but that was the first time in 13 years, and I’m not at the cashier/stocker level. I did sign a non-compete agreement, as well as a non-solicitation agreement, but I’m one of those executive types.
This is why it’s not really a non-compete, just store policy, that would be assuming this is the typical WalMart employee. That’s because such an employee would not have any company secrets or other such privileged information or skills which would be the basis for a non-compete.
The non-disclosure clause has been part of every single retail operation I’ve worked at. It’s usually part of your paperwork when you’re first hired. It doesn’t matter what position you’ve applied for – everyone gets it, and everyone signs it if they want to work for said retail operation.
Retail is horrendously competitive. You may be a lowly cashier, but you see things and observe procedures. You take all that with you when you apply for the job at the competitor across the road and/or across town. Your employer doesn’t want to take any chances re what you may know, so they have you sign that piece of paper.
To me, it sounds like Walmart rejects any other type of general retail work – grocery stores, their competition in the discount retail world (i.e. Target), probably even pharmacies/HBA stores like CVS or Walgreens because Walmart has those. If your other PT job is working at a pizza place, say, that’s be OK with Walmart because Walmart isn’t a restaurant.
A non-disclosure agreement is not the same as a non-compete. A non-compete contract, when valid can prevent you from taking a job with a competing company or starting your own competing company. Non-disclosure simply says you can’t reveal privileged information. It applies while you have the job, and afterwards, but doesn’t prevent you from taking other jobs or competing.
MOST places you work at now, either in thier handbook OR on the application sounds off about at will employment, it is simply a reaffirmation of law to give an employee notice as to the employment relationship.
The part about being written up 3 times before termination, 1. That does does not include egregious offenses, 2. for that to be an implied contract and enforceable is a legal question in that state only. While some handbooks/clauses “can” be contractual as far as a wrongful termination, it is still a legal question.
It is my opinion that the non compete clause is a bully tactic. While probably legal as a termination when they find out (??), it is still, IMO, not a termination for “just cause”, therefore, if employed by the other, maybe partial unemployment can be applied for?
The usual rule of thumb for non-compete clauses - this is Canadian policy, but I assume the same legal logic applies almost everywhere…
The non-compete clauses usually fail when they are so restrictive that the person cannot hope to earn a living if they quit. These contracts usually are designed to prevent the worker from taking business secrets to a competitor. if the restrictions are geographically too restrictive, or for too long, or exclude you from too many types of businesses, then the court will consider them “unconscionable”.
As for working for a competitor at the same time - employers can put any reasonable restriction on your work that does not violate human rights. (One grocery store I recall had the restriction - you MUST be available to be called in for Saturday if they need you, even if not scheduled.) I presume that the restriction ends when you quit, so it’s not a real “non-compete” contract. I suppose you could work in two places, but with thousands of people going through both stores, I’m sure it would not be long before the boss would be aware of what’s going on, unless they give you a back-room-only job. If you live in an at-will state, then they “will” let you go. Technically, Wal-Mart doesn’t do fast food, sio that’s an option, unless their policy includes in-store subcontractors.
Non-competition clauses generally are conceptualized as those that restrain the employee in his or her future employment, after the employment subject to the non-competition clause has ended. As has been noted, public policy tends strongly to disfavor them, particularly where the overreach is patent. A Director of R&D probably would be covered by a suitably limited (in time, geographic scope, and industrial sector) non-competition agreement. A cashier (low-end semi-skilled) would not (ever). Wal-Mart would almost certainly not even waste their time prosecuting such a lost cause.
But at-will employment does mean the employment can be terminated at any time (save for certain prohibited reasons). If the employer wishes, they can terminate an employee who takes a job with a (perceived) competitor. They can terminate an employee who takes a second job at all. They can terminate an employee because the employer is losing money and needs to cut costs. They can terminate an employee cause they wonder what it’s like to do so.
All this said, if your sister-in-law picks up a second shift at Rite-Aid, and it doesn’t make her late for her work at Wal-Mart, I seriously doubt her store manager is going to give a shit. Particularly if she doesn’t make a big thing about it.
Maybe I’m using the wrong term… but it was the term used by the employers.
I had one even working as a cashier in college (California, mid-90’s). There wasn’t much to it, really: “We’ll pay you virtually nothing. We can fire you if we want to. You have to comb your hair and show up on time. Don’t steal anything.” It had to be signed as part of the paperwork to get started.
I’ve only had one other job* (in Washington, as a lowly tax preparer at one of those sleazy chains), and it also had a simple employment contract (two pages this time). That one did have a non-compete in it.
Those sound like disclosures. You’re signing a statement saying that yes, you’ve read and are aware of these specific company policies, violation of which can lead to immediate termination of employment. They make you sign them so that if you do violate the policy, and they do fire you, and you come back with a lawyer, they can pull out the signed disclosures and prove you were aware of the policy.
If the legal department knew that the person having you sign the disclosure called it a “contract”, they’d probably have kittens.
Unless one is a manager, and a higher up one at that, I don’t see how a cashier or stock boy or some other low-level grunt working at a competitor is much competition for WalMart. I despite companies that do this. Maybe they should pay more so that people wouldn’t have to get second jobs
Really? It always seems like I’m buying a freaking house when I change jobs- there’s the NDA, the IP agreement, the “I’ve read and agree to company policy X” agreements, etc…
And I’m not an executive- just high level IT staff (i.e. not management in title, but somewhat in practice)