Fish and Richardson, the law firm, says "Employees: Non compete agreements - don't sign them.
It's often effective to take the contract, cross out and initial sections you and your lawyer consider overreaching, sign that, and turn it in. Then the company has to argue with you paragraph by paragraph, tying up their legal counsel, if they really want those terms. Also, there are special legal provisions about requiring a new employment contract from existing employees.
I went through this years ago with a very big company, refused certain clauses, and after some huffing and puffing, they gave in. This was important, because I did work for a startup on the side and got stock.
I've never heard of it causing a problem, but I've definitely heard of it not working.
If you disagree with sections you are to strike them out and initial them, additions or changes are appended to the bottom. This helps everybody know what's happening.
From reading the article it sounds like he didn't create his own agreement (for them to sign) but copied and then altered their agreement. If it contained their letter head and the terms as if they had written it not him, then it's clearly an attempt to trick the other party.
Employers bent on evil normally give you around 3 months then 'restructure' the company (i.e. give you a new job title) as a mechanism to say it is a new job and not covered. They still need to wait 90 days before they can enforce that and you have the option to reject it (but get your CV updated in the meantime because you're leaving).
Employment law varies enormously from state to state, country to country etc. People in the US used to At Will will have no concept of what it is like to be With Cause (and vice-versa).
However, even With Cause employers can get rid of anyone they want. In the UK it's classed as a 'right to manage your business' and the worst downside is a small compensation payment which rarely exceeds a few thousand pounds (occasionally there are large payouts for the most egregious things, especially racist or sexist bullying). In the US, payouts could be larger but for many businesses they just see that as part of the exit package and budget accordingly. Always remember, in a business, no-one cares about you and these people are not your friends.
Having been through it multiple times, my advice is always have your CV up to date and if you don't like the look or smell of the situation, it's time to leave. You will feel much better and less stressed if you feel in control of your destiny and not being played by some Evil Overlord who doesn't give a damn about you.
That's a nice theory, but in practice we also have lawyers who specialise in dealing with M&A situations and minimising the impact of TUPE. I've been in a situation that looks like a textbook example of what TUPE was intended to cover, yet one of the first things the acquiring company's lawyers did was seek to limit its effects, apparently quite successfully.
As you pointed out, any protection you get under TUPE tends to be for only a relatively short period anyway. It might be enough to stop you getting completely screwed over on the day the acquisition goes through, but ultimately if the new employer or their management team are not the same kind of people you used to work with, you're probably still better off getting out early.
Incidentally, this is also a good argument for not signing a dubious contract even if you know and trust the current employer and management team. In the event of a change in control of the business, the incoming leadership get to keep the same terms by default; that is considered reasonable since you already worked under them before. So just because a nice employer doesn't exploit some contractual advantage today, you should never assume the new face of that employer won't do so tomorrow.
My experience is similar - if you can't reach agreement with your employer, you should already be looking at other options.
Bottom line: If you aren't happy with a contract, either explicitly challenge it immediately or don't start to perform your actions under it until the matter has been resolved.
Basically one of the parties has provided a written record of their version of events, if you don't agree with it, you need to speak up.
In the end they've told you the contract they want you to work under, they have provided you with a copy and you seem to be happy to carry on working and taking their money. If you have a problem, why didn't you speak up? So it's implicit that you accept the new contract.
Perhaps it's not the law in your country, but it's definitely not insane if you're in a grey area and in this instance the law sides with the written contract, not the avoidance strategy.
You guys are all wrong. There is no blanket automatic acceptance of contracts if you ignore them in the UK.
There IS automatic acceptance of updates to previously signed contracts, ONLY if the original signed contract contains "terms permitting the employer to make changes from time to time" without your permission.
That is completely different than automatic acceptance of all contracts that are left unsigned and ignored.
If you don't like contract terms, firstly don't sign up to them but secondly don't start working at a place as if you had signed up to them.
It would be difficult to argue the contract wasn't binding if you had acted in compliance with certain of its terms. The more specific those terms you are complying with, the less likely you would be able to claim you weren't bound by the whole contract.
For example if the contract states you have to travel to a particular location once a week, and you comply with that obligation, you would be less likely to argue you weren't bound by the whole contract.
It's a fact.
> However, if you put up with the change without
> protesting, there is a good chance that you will
> be viewed as having implicitly accepted the change,
> losing your right to object to it.
I'd be surprised if the US hasn't inherited implied contracts via common law.
It's not automatic that a contract is implied, but a contract COULD be implied by action and conduct.
Specific examples where the unsigned contract has been upheld in court:
Not in this case being discussed (procrastination in signing). The company doesn't have a written record of their version of events, namely a copy of the contract with your signature.
Of does 'unable to produce' translate to 'unwilling to produce'?
And I don't see this as "fly under the radar" at all. They should look at the contract they get back from you, just as you should look at the contract from them. If they don't even notice that you crossed stuff out, that's hardly your fault.
Regardless, the employer almost certainly has a very high caliber legal team, and you? do you even have a lawyer? You think that you're going to get the better end of the argument in court based on an extremely tenuous thread? That's not the smart way to bet, you're more likely to get your ass handed to you. If you want to modify your employment contract you need to be upfront about it.
I'm curious as to how this would play out in court, though. They say you agreed to such-and-such in the contract. Asked to produce the original contract, they pull out a copy with your signature and the relevant clause crossed out and initialed by you. Is the court really going to say, "Well you didn't initial it, so even though you clearly saw this change and accepted the signed contract and said nothing about it over the X years that Bob worked for you, we'll say that it's still in force"?
I'd also like to know why "they still started their employment" would be considered to be implicitly agreeing to the employer's version of the contract, while "they still paid their employee" would not be considered to be implicitly agreeing to the employee's version of the contract.
I can see how you'd get in trouble with the tactic of just taking the contract and then ignoring it. But you get a contract, you counter, everybody shakes hands, you're on the payroll and somehow that implies that you agreed to theirs, and not vice versa? How could that possibly be?
If someone can't have a conversation about an employment contract any more politely than "no verbal response" I have to wonder how they ever get hired in the first place.
The "must disclose any existing inventions or ideas to the company now and that anything not enumerated belongs to them" is what does it. Almost none of my offers have ever included such a line. Any company trying to push that does not deserve a respectful response.
I can have a conversation about the contract. But when the contract includes that, it is like being given a serious minimum wage offer.
Is there a reason why one should quit instead of negotiating the contract while also letting them know you are offended by their initial offer? (Of course, if my current employer pushed something like that on me, I would be starting to look around.)
If anything, quitting is likely worse than being let go because you likely have less of a claim with regards to unemployment (a lawyer would need to specify the actual details).
If you are serious, talk to your lawyer. Don't guess or negotiate randomly. In some states this boilerplate language is meaningless, in others not so much.
You could be a critical part of the acquisition, in which they bend. Or you could be a part of the product that was going to be redundant anyways and they will be glad of the excuse to let you go.