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  • Writer's pictureJennie Tannenbaum

Are Your Pre-Employment Agreements Enforceable

James began today differently from all the other days by reciting a short prayer with the intention that the new job he had accepted would be exactly the one to propel his career forward. He repeated this mantra of a prayer as he waited for the HR representative, Gloria, to gather the papers he needed to sign before beginning work.

“Here are a few more documents the company would like you to read and sign,” said Gloria as she handed them to James. The documents were titled: Dewba Corp. Non-Solicitation Agreement, Dewba Corp. Confidentiality/Non-Disclosure Agreement and Dewba Corp. Non-Compete Agreement.

James was familiar with the first two agreements, because he remembered signing them at the former company he worked for. He hesitated a bit about signing the non-compete agreement, because he wasn’t familiar with it and he wasn’t sure that it was fair or in his best interest. Still he felt that he should probably just sign it, since he was almost certain that this job would move him ahead in his chosen field.

Non-Solicitation Agreement

A non-solicitation agreement prohibits an employee from soliciting a specific type(s) of group(s) of people in a specified time frame. They are generally enforceable as long as it is reasonable and supported by consideration from the employer and employee.

Confidentiality or Non-Disclosure Agreement

A confidentiality or non-disclosure agreement prohibits an employee from giving out trade secrets to third parties who are not privy to such information, such as, competitors and the public. They are generally enforceable if it is reasonable and supported by consideration from the parties.

Non-Compete Agreements

A little over a year ago in October 2018, the law governing non-compete agreements underwent some substantial changes. Highlights of some of the modifications are as follows:

If a new employee, such as, James is asked to sign a non-compete at the beginning of his employment, it has to have been given to him at the time that he was offered the job or 10 days before his start date and it must indicate that he has a right to consult with an attorney before signing. Presuming that James’ start date was 10 days later from the day he was given the non-compete, it will meet this requirement of the law.

If a non-compete is given to an employee who is already employed by the company, “garden leave,” that is, 50% of an employee’s highest base salary for the prior 2 years must be paid to the employee during the non-compete period. This period cannot be more than 12 months, unless the employee breached their fiduciary duty or took the property of the employer. 10 days notice must be given to an existing employee to consider accepting it as well as informing the employee that one has a right to consult with an attorney before signing.

The new non-compete law excludes binding certain employee groups: those under 18 years of age, unpaid or paid student interns and short-term employees who are enrolled in school.

To ensure that your pre-employment agreements are enforceable have them reviewed by Simply Good Law that offers training and assistance with other matters in the pre-employment process.

This article is for information purposes only and is not meant to be construed as legal advice. For more information or discussion contact me at or at 978-681-0017.

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