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  1. #1
    bigquestion is offline Junior Member
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    Question Asked to sign Non compete BEFORE interview???

    What is the name of your state? Florida

    Hi,
    I'm just wondering if it is standard practice to require signing a "NON-cubed" (NONDISCLOSURE, NONSOLICITATION, NONCOMPETE) doccu similar to this one before a formal offer of employment is made or a formal in person interview is scheduled.

    I was solicited by a recruiting firm for a 1-year 1099 contract for a very specific tech job. After a cursory telephone interview, The recruiter (who solicited me) definitely made it seem like I needed to rush to get this agreement signed and back to him before we proceeded with an in-person interview.


    Questions:

    1: Is this normal practice BEFORE a formal job offer is made or interview is scheduled?

    2: My biggest concern is in section 3. Does signing this agreement limit me from working in any field of "computer programming or analysis " (section 3d) at the end of the 1-year contract term

    3: If I sign this agreement BEFORE I am made a formal offer and the company does not offer me the job, am I still bound by the agreement? (section 3d ..."for a period starting on the date of the executing of this agreement and continuing until two years after termination of this agreement."


    Agreement below for review (so you can actually see it)


    NONDISCLOSURE, NONSOLICITATION, NONCOMPETE AGREEMENT


    The Agreement is made as of this Date by and between COMPANY, Inc.”) and SSN# ____________
    With residence at ___________________________________________, herein after called the “contractor”.

    That COMPANY is in the business of providing consulting services and from time to time desires to retain contractor to provide their employee/s to work on COMPANY’s projects/assignments. The contractor desires to be retained by COMPANY to perform such tasks and may receive or acquire confidential information during exploration of establishment of such relationship or after establishment of such relationship.

    It is therefore agreed:

    1. All knowledge, information, and material that contractor receives from COMPANY, concerning COMPANY or COMPANY business and every aspect thereof, is intended to be the trade secret and confidential and proprietary information of COMPANY or any COMPANY client. Contractor shall hold such information, (including, but not limited to, technological design, software research and development, ideas, plans, manufacturing processes, source codes, marketing strategies, client lists), in strictest confidence and shall not disclose same to others, nor use it in any way or permit others to use it in any way, commercially or otherwise, without the prior express consent of COMPANY.

    2. Except as required in his/her duties to COMPANY or COMPANY client, contractor will never directly or indirectly, use, disseminate, disclose, lecture upon, or publish articles concerning COMPANY or COMPANY client business and any aspect thereof without the prior express consent of COMPANY.

    3. Because of the sensitive nature of COMPANY’ work for its clients and the effort in which to attract these clients to COMPANY, contractor agrees that during their agreement with COMPANY and for a period of one (1) year after termination of agreement by the company, no matter how such termination has occurred, contractor shall not:

    (a) Solicit or attempt to solicit, directly or indirectly, any person or entity which is, or is actively being solicited by or on behalf of COMPANY to become a customer or client of COMPANY at the time of such termination, wherever located, to offer services of any kind available from the company at the time of such termination.

    (b) accept or attempt to accept any offer of assignment/project from any COMPANY client with which the Contractor may have come in contact as a result of this agreement, whether such assignment be on a part-time, full-time, independent contractor or any other basis without the written consent of COMPANY.

    (c) discuss any fees or salaries paid by COMPANY to the Contractor for service or the fee COMPANY charges its customers with any persons other than designated COMPANY management personnel.

    (d) Engage or attempt to engage in any activity directly or indirectly, for his/her own account or as Contractor, consultant, officer, director, partner, joint venture or otherwise, at COMPANY client or client remote site for the purpose of obtaining contracts or employment in any position of computer programming or analysis related to assignments Contractor is working on for a period starting on the date of the executing of this agreement and continuing until two years after termination of this agreement.

    4. To further aid the company to enforce its rights hereunder, and without limitation of any Other remedies it may have for any breach by the Contractor of any of his/her obligations hereunder, the company shall be entitled to injunctive relief and an accounting in the event of any such breach or threatened breach.

    5. If any provision of this Agreement or the application thereof to any party or circumstances shall be declared void, illegal or unenforceable by a court of law, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, parties shall use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purpose intended under the invalid or unenforceable provision. Any deviation by either party from the terms and provisions of this Agreement in order to comply with applicable law, rules or regulations shall not be considered a breach of this Agreement.

    6. This Agreement shall be construed under the laws of the State of Florida, USA and
    any action brought as a result of the breach of this Agreement shall be brought in the State of Florida, USA or in such other proper jurisdiction as COMPANY may decide.

    7. This contains the entire Agreement between the parties hereto and supersedes all previous negotiations, agreements and commitments in respect thereto, and shall not be released, discharged, changed or modified in any manner, except by instruments signed by duly authorized officers or representatives of each of the parties hereto. There are no representations or Agreements except herein provided.

    8. It is further agreed that the Contractor shall exclusively be available to COMPANY for a period of two (2) full business days from the time of interview. If COMPANY does not confirm the assignment within two business days then the Contractor shall not have any binding “exclusive hold” requirements.

    ___________________________________ _________________________________
    Contractor Signature COMPANYWhat is the name of your state?What is the name of your state?
    Last edited by bigquestion; 09-16-2006 at 01:11 AM. Reason: needed to mark as question
  2. #2
    JETX is offline Senior Member
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    Quote Originally Posted by bigquestion
    I'm just wondering if it is standard practice to require signing a "NON-cubed" (NONDISCLOSURE, NONSOLICITATION, NONCOMPETE) doccu similar to this one before a formal offer of employment is made or a formal in person interview is scheduled.
    Sure glad you asked this question EARLY in your long and boring post... or I wouldn't have answered.
    No, it is NOT standard practice... but there is nothing wrong or illegal in them doing so. Your choice, sign the agreement and have an interview or don't, and don't.




    I was solicited by a recruiting firm for a 1-year 1099 contract for a very specific tech job. After a cursory telephone interview, The recruiter (who solicited me) definitely made it seem like I needed to rush to get this agreement signed and back to him before we proceeded with an in-person interview.

    Is this normal practice BEFORE a formal job offer is made or interview is scheduled?
    Already asked and answered.

    My biggest concern is in section 3. Does signing this agreement limit me from working in any field of "computer programming or analysis " (section 3d) at the end of the 1-year contract term
    Yes. That is the purpose of a NON-COMPETE!!!

    If I sign this agreement BEFORE I am made a formal offer and the company does not offer me the job, am I still bound by the agreement? (section 3d ..."for a period starting on the date of the executing of this agreement and continuing until two years after termination of this agreement."
    No. Absent employment, you have no 'benefit' from the contract making the contract invalid. Also, didn't you read clause 8??
  3. #3
    bigquestion is offline Junior Member
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    Sure glad you asked this question EARLY in your long and boring post... or I wouldn't have answered.
    thanks for the reply.


    Quote:
    My biggest concern is in section 3. Does signing this agreement limit me from working in any field of "computer programming or analysis " (section 3d) at the end of the 1-year contract term
    Yes.
    Answer: That is the purpose of a NON-COMPETE!!!
    Yes, I gathered that. I should have been more specific and worded my question as follows:
    Does the specific text of 3d apply only to any client which the Company currently works with or could it be interpreted to mean the entire "computer programming or analysis" industry. (Any company which employs computer programming could potentialy become a client of the Company).


    No. Absent employment, you have no 'benefit' from the contract making the contract invalid. Also, didn't you read clause 8??
    Yes, thanks for clearing that up. I was not sure if clause 8 would apply only to the “exclusive hold” expiring two days after the interview or to the entire Agreement.

    thanks,
    BQ
  4. #4
    shortbus is offline Member
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    This "agreement" would not be legally binding in any state. Contracts must have consideration (money, services, etc.) running in both directions to be binding. This requires the signor not to compete, but doesn't offer anything in return. Hence, it's not enforceable.
  5. #5
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by shortbus View Post
    This "agreement" would not be legally binding in any state. Contracts must have consideration (money, services, etc.) running in both directions to be binding. This requires the signor not to compete, but doesn't offer anything in return. Hence, it's not enforceable.
    Actually, the interview itself is the consideration.
  6. #6
    JETX is offline Senior Member
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    Quote Originally Posted by shortbus View Post
    This "agreement" would not be legally binding in any state. Contracts must have consideration (money, services, etc.) running in both directions to be binding. This requires the signor not to compete, but doesn't offer anything in return. Hence, it's not enforceable.
    And of course, that may NOT be true.
    No one, especially absent a read of the ACTUAL agreement, can make that type of judgment call.
    Only the court can make a FACTUAL claim of an agreement being binding or not. Now, if you had said that it MIGHT not be valid and explained why..... ??
  7. #7
    shortbus is offline Member
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    Belize & JETX, did you guys go to the same law school?

    Belize, as usual, is wrong. the interview itself is not consideration. Consideration has to take the form of a detriment to one party that's a benefit to the other. The interview, at best, is a detriment & benefit to both parties. Also, it's unreasonable to infer this from a contract that's silent on the point.

    JETX, mutuality of consideration is a basic contract requirement and the law in all 50 states. Whether an agreement is binding is a legal issue, not a factual one. There is no factual issue here: the contract specifies no consideration.

    When noncompetes are signed in the context of an employment agreement, they're valid as contracts because there is consideration (the signor is getting a job). Companies love to have people sign these (unilateral nondisclosure agreements also). But a one-sided contract is not legally enforceable.
  8. #8
    JETX is offline Senior Member
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    Quote Originally Posted by shortbus View Post
    Belize & JETX, did you guys go to the same law school?
    I don't know about BB... but I went to law school... and clearly, since you don't understand ANY of the basic principles of law, must be watching Judge Judy.

    Whether an agreement is binding is a legal issue, not a factual one.
    Hmmmm... then why are judges the 'Tryer of Fact'???

    The point here is... YOU made a factual statement (that the contract was NOT binding) without even seeing the agreement... and clearly without KNOWING all the facts. The FACT is... the agreement could be binding... or may not be. ONLY a court can make that FACTUAL decision.

    There is no factual issue here: the contract specifies no consideration.
    How do you KNOW what the contract says... or doesn't say???

    When noncompetes are signed in the context of an employment agreement, they're valid as contracts because there is consideration (the signor is getting a job).
    And as expected that is pure 100% crap!!!
    There are lots of non-compete agreements that are found BY A COURT to not be valid.
  9. #9
    shortbus is offline Member
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    Quote Originally Posted by JETX View Post
    Hmmmm... then why are judges the 'Tryer of Fact'???
    In a jury trial, they're not. Juries determine the facts, judges determine the law. But when there's no facts in dispute, a case will not go to the jury. The judge will decide.

    How do you KNOW what the contract says... or doesn't say???
    Um, well, the OP put it up for us to read. Well, those of us who are literate.

    There are lots of non-compete agreements that are found BY A COURT to not be valid.
    There are plenty of valid non-compete agreements in the world. This is not one of them. This one is just stupid.
  10. #10
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by shortbus View Post
    This "agreement" would not be legally binding in any state. Contracts must have consideration (money, services, etc.) running in both directions to be binding. This requires the signor not to compete, but doesn't offer anything in return. Hence, it's not enforceable.
    I guess you need a refresher course in George Washington University contract law. (although it did take me 32 years to complete).

    Consideration, in the legal sense is defined as something of value given in exchange for a promise or the performance of an act. Consideration can be money, goods, or services. It can be the canceling of a debt or an agreement not to do something. All parties to an agreement must give consideration in order to create an enforceable contract. It is this trading of something valuable that distinquishes a contract from a gift. The amount of consideration to be traded is determined by the parties.

    In our present case, the consideration does, in fact, flow both ways. For the promise not to tresspass on the firm's client relationship, the consultant agrees not to solicit the client for a number of years (regardless of which client is revealed to the consultant). For that specific promise to perform, the firm agrees to create a meeting between the client and the consultant that may or may not result in a job, but in fact, does result in the possibility (based on qualifications and needs) of a job.

    Both sides of the consideration receive not only something of value in services, but monitarily.

    The immediate breach of such has, as far as I read the contract, no defense.

    Lack of Mutual Assent cannot be claimed if both parties to the agreement sign such.
    Illegality is not the same as invalid and there is nothing on the face of the issues which is illegal.
    Capacity of the Parties is assumed since we don't know the parties in question.
    Coercion and Fraud are not an element that has been questioned although in this case, there is no stated coercion and if there is a fraud, it has not been forwarded.
    Statute of Frauds may apply in this case given the totality of the value of the 'contact' available due to the contract. However, since there are no facts as to the issue, it is, for this discussion, moot.
    Parol Evidence Rule is not applied to contracts under Florida statutes. However, if this situation were to escalate into the courtroom, Parol Evidence Rule would stipulate that only the written instrument can be argued, not any verbal promise made before or after the making of the written instrument.

    Should our poster sign such an agreement? That's a personal decision. Is such an agreement enforcable? Of course it is. Will such an agreement be found by law to be illegal. Of course not.

    The MOST this poster can hope for is that, if the opportunity arises, the contract will be found to be void or voidable. And then the severability clause would serve to protect that part of the agreement NOT found to be unenforcable.

    Now, pay attention. The proposed agreement COULD be found by a court of law to be invalid or voidable. OR it COULD NOT be so found. the fact that you said unequivocably that it is ILLEGAL is not only ridiculous, but flies in the face of every state's contract law provisions.

    Now, since you stated that this contract is "ILLEGAL" and to be illegal a thing must be stipulated as such, please guide us to the specific state of Florida statute, law or regulation (or federal in any case) which supports your contention.

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