MY CONTRACT - advice please
MY CONTRACT - advice please
(OP)
Hi,
I am an enineer in training with about 3 years experience.
My new employer has drawn up a lengthy contract that contains items I have not seen in my contracts from my previous employers.
One clause of the contract states that if I choose to leave the company on my own accord, I am not to take employment with any other company in the province that does any work that has been described in the job description section of my contract for a period of one year. The job description is so broad that it would include any employment that is even remotely related civil/environmental engineering. I have questioned them on this and they are telling me its industry standard but i have worked in 3 firms before and there has been nothing this limiting. i have signed confidentiality agreements before and thats ok but how can i agree to not work anywhere else for a year if i leave the company? They also said this is to protect their 'special and unique' methods from their competitors. Another peculiar thing is the contract has no termination date or duration. I questioned on this and they said its their hope that i would remain with the firm indefinitely so there is no need for a termination date on the contract. so basically i have no protection under this contract at all. if a year down the road i find out that this company is not for me, if i decide to leave, i would have to leave the province or sit on my butt for a year. I have not signed the contract yet and i would greatly appreciate any input, opinions, advice that any of you may have.
Thanks in advance.
Rick, EIT
I am an enineer in training with about 3 years experience.
My new employer has drawn up a lengthy contract that contains items I have not seen in my contracts from my previous employers.
One clause of the contract states that if I choose to leave the company on my own accord, I am not to take employment with any other company in the province that does any work that has been described in the job description section of my contract for a period of one year. The job description is so broad that it would include any employment that is even remotely related civil/environmental engineering. I have questioned them on this and they are telling me its industry standard but i have worked in 3 firms before and there has been nothing this limiting. i have signed confidentiality agreements before and thats ok but how can i agree to not work anywhere else for a year if i leave the company? They also said this is to protect their 'special and unique' methods from their competitors. Another peculiar thing is the contract has no termination date or duration. I questioned on this and they said its their hope that i would remain with the firm indefinitely so there is no need for a termination date on the contract. so basically i have no protection under this contract at all. if a year down the road i find out that this company is not for me, if i decide to leave, i would have to leave the province or sit on my butt for a year. I have not signed the contract yet and i would greatly appreciate any input, opinions, advice that any of you may have.
Thanks in advance.
Rick, EIT





RE: MY CONTRACT - advice please
The employment agreement itself may not be enforceable in many jurisdictions - it would not stand up in Texas, for instance. We have a pretty strong "right to work" law (and tradition) that makes these kinds of agreements worthless. And you are an EIT, so they will have a hard time enforcing this until after you earn your PE.
Personally, I would not sign it. I'd say, "Thanks, but no thanks" and prepare to walk out of the door. If they are serious about the agreement, they will let you leave. If not, they will offer to change the agreement.
You can also consult with a lawyer who specializes in employment issues. S/he can tell you whether the agreement is enforceable -
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RE: MY CONTRACT - advice please
As far as how enforceable this is, I agree with Focht3, you need to talk to an attorney. Especially if you are really interested in working with this company. I think one of the legal points in the matter is "Can a company force you to do something that harms your well being?"
I've only had 2 employers in the past 14 years and did not sign any contract at either so I also agree with Focht3 that I would not sign such an agreement. The company either wants me or it doesn't. From newspaper and magazine adds, It looks like there are plenty of engineering positions available right now in several market areas.
RE: MY CONTRACT - advice please
Tread lightly, but don't be pressured into signing an agreement...
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RE: MY CONTRACT - advice please
I agree that the situation is a bit touchy.
The unfortunate thing is I live in an area where the engineering market is not so great because of the general economic conditions of the area and the lack of large scale projects.
I actually am working with the company already. I took the position because I was in need of employment and was unemployed for about 8 months. They had forwarded me a draft copy of the contract after I verbally excepted the position and we were to discuss any issues during my first week. I have been here four weeks and they have not had the time to meet with me regarding the contract and have stated that they will have it finalized early in the new year.
They said they have shown it too a lawyer and said I may do the same. I'm not sure how strong they will adhere to the 'no-competion' clause. I'm hoping that I can convince them to do a trial period of say 6-12 months at which point I can decide if the position fits my career goals etc. and it also gives them some time to evaluate my performance. This was how it was with my previous employer.
Once again thanks for taking the time to repond.
Rick, EIT
RE: MY CONTRACT - advice please
Please take this the right way, and don't be offended - you should be able to argue that you pose little or no economic threat to the company. After all, you were out of work for 8 months - do they REALLY think you will acquire a bunch of valuable clients and steal them? If that were likely, you wouldn't have been unemployed for 8 months...
Good luck - keep us posted.
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RE: MY CONTRACT - advice please
"if I choose to leave the company on my own accord, I am not to take employment with any other company in the province that does any work that has been described in the job description section of my contract for a period of one year"
not good... you may never be able to work for a year! I made an error several years ago regarding signing a non-disclosure/confidentiality agreement that was more than onorous... and it prevented me from obtaining employment in the airport engineering field that I had been actively involved with for several years... I have since refused, with no harm done...
"telling me its industry standard but i have worked in 3"
This is not industry standard... although it is becoming more common.
"i leave the company? They also said this is to protect their 'special and unique' methods from their competitors."
'special and unique' methods are for lawyers, generally, unless the work is really 'special and unique' it's usually 'flash' and has little substance... Can they identify what they have that is 'special and unique'? What skills are you bringing to the outfit? do they have a listing of a 'special and unique' protocol? or is it a 'catch-all'?
"Another peculiar thing is the contract has no termination date or duration. I questioned on this and they said its their hope that i would remain with the firm indefinitely so there is no need for a termination date on the contract."
Unless they 'fire' you or 'lay you off' (also considered firing in some jurisdictions)... What provision do they have to protect the 'special and unique' information in the event you get fired?
"so basically i have no protection under this contract at all. if a year down the road i find out that this company is not for me, if i decide to leave, i would have to leave the province or sit on my butt for a year. I have not signed the contract yet and i would greatly appreciate any input, opinions, advice that any of you may have."
You may want to have them identify the 'special and unique' items that they wish to include... as well as provide a termination date for the contract and not leave it 'open ended' at their indulgence. They may not hire you without signing it and you have a decision... You, also, may want to talk to a lawyer...
Another concern, if the matter's not resolved shortly, then, you have agreed to the contract... since you have a copy of the contract and you have accepted employment by them. You might send them a note/memorandum to the effect that you do not agree with several terms and you will review the matter of the contract in a year.
RE: MY CONTRACT - advice please
most companies want and some deserve some protection of their intellectual properties, etc... your lawyer should be able to come up with some wording that is agreeable to both parties -- and keep you employed there without bruising everyones egos...
RE: MY CONTRACT - advice please
Another concern, if the matter's not resolved shortly, then, you have agreed to the contract... since you have a copy of the contract and you have accepted employment by them. You might send them a note/memorandum to the effect that you do not agree with several terms and you will review the matter of the contract in a year.
I disagree. Please note that richarda has been told,
"They had forwarded me a draft copy of the contract after I verbally excepted the position and we were to discuss any issues during my first week. I have been here four weeks and they have not had the time to meet with me regarding the contract and have stated that they will have it finalized early in the new year."
{emphasis added by Focht3.}
I don't think that a formal agreement has been reached - even verbally - since the agreement is still in flux. And I don't think any of the key components have been agreed to by richarda.
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RE: MY CONTRACT - advice please
RE: MY CONTRACT - advice please
again, although I hate lawyers with a passion, there are times when one in your pocket is worth their weight in gold... and this may be one of those times...
RE: MY CONTRACT - advice please
The longer you go without resolving this the worse your position becomes and you could very well end up as dik suggests, accepting the employment contract by default.
I would suggest drafting a letter that follows the outline of the contract terms and list, in a very professional way, each of your objections. Then your cards are on the table and you have staked your negotiating position. Everything is negotiable until the contract is signed. This also helps you clarify your thinking.
You might accecpt the items that cause you heartburn for some type of compensation so, you should be thinking about what you would want in return for signing each contract provision you list; a signing bonus, 5% extra pay, one added week of vacation etc,
In the end, it comes down to how much do you like the firm, how much do you want to work there and how much they want you to stay. In many respects it is like getting married, in fact you spend much more of your waking hours at work then at home with the wife and kids so, choose wisely and don't take it personally - it's just business.
RE: MY CONTRACT - advice please
I'll keep you all posted on the developments.
RE: MY CONTRACT - advice please
Thanks, I'd be happy to find out how this ends... keep the forum posted.
You might tap out a one-liner stating the draft is too vague and requires clarification... namely identifying what is special and unique and if it is 'proprietary' agree not to use or market it specifically. Also tie down a specific duration and that you are prepared to enter into a new contract at that time (modified as appropriate).
I almost spend more time talkin' to lawyers than playing engineer, it seems... I don't really have a job description... I just do the work! If I were to exclude items in it from future work, I'd be twiddling my thumbs (unless that were included <G>). Carefully review the 'Job Description' part... you may have to take up a new vocation in order to work. There are likely lawyers, in your area, that have experience at this type of thing that you can consult with for a minimum fee... a couple of hundred dollars spent at the front end, may save you a pile of heartburn...
RE: MY CONTRACT - advice please
aspearin1
RE: MY CONTRACT - advice please
Best not to 'come from behind'... If something's not in place, it's a lot easier than worrying about legal costs... The threat of litigation is often sufficient to deter someone.
RE: MY CONTRACT - advice please
Also, I'm in agreement with focht3, as long as you are negotiating the contract (and since they haven't met with you to discuss particulars) it would not be binding. but you certainly can't hurt your position to put down your concerns in writing and open them up for discussion. It's all part of the game, and you may as well get used to negotiating now.
this is an interesting issue, I will be interested to see how it plays out.
good luck
dutchie
RE: MY CONTRACT - advice please
RE: MY CONTRACT - advice please
A good post. I, personally, don't have a problem with a contract arrangement for a young gun entering the work force. Employers may spend considerable time and resources in trianing and developing their young talent. I do have a problem with a lack of a termination date though. Such a contract should not be binding indefinitely.
RE: MY CONTRACT - advice please
I would doubt (hope) this is enforceable unless they are willing to pay you for the year "off". You might work out different wording to protect, as someone said, existing clients of your firm; but then, again, you are presently only an EIT -so your exposure to clients would likely be limited.
Still, I suppose you could get employment with a firm in another province and be "transferred" back to your own, eh??
My first off the wall remark would be . . . can't say it here.
RE: MY CONTRACT - advice please
In my experience, it is unusual for the type of provisions presented inthis contract for an engineer in training with 3 years of experience.
RE: MY CONTRACT - advice please
I know of a few firms that use these clauses, but they are usually reserved for very experienced managers or senior engineers. In most cases, the senior people that have joined our firm, including myself, have also brought the clients with them, much to the chagrin of our former employers.
KRS Services
www.krs-services.com
RE: MY CONTRACT - advice please
referring to 'law for professional engineers', by D.L. Marston;
'engineers often encounter similar restrictive covenants in employment contracts. Such contracts may attemp tp restrict the employee after leaving such employment. The court will apply principles of reasonableness and public policy to determine the enforceability of non-competition clauses in employment contracts. The courts are reluctant to enforce restrictive covenants that would severely limit the former employee's ability to earn a livelihood; each decision will depend upon the particular circumstances. '
RE: MY CONTRACT - advice please
However, if you're already working for them without the signed contract that tells me that they're more interested in getting the work done and the contract is just a nice idea. If they hired you without the contract, I'd speculate that they won't fire you for not signing it.
Signing or refusing to sign has risk. Which risk are you willing to accept?
RE: MY CONTRACT - advice please
I found out after I started here (late Nov.) that over the last several years, at least two junior engineers have left after a maximum of 2 years. Through the grapevine I have heard they left because of not being content with the way they were treated and the way the company operates. You are right about lack of incentive to stay. I moved from one province to another to take this job which during the interview phase seemed to be a great little up-start engineering firm to join. I accepted a salary that I would say is below the national average but I justified somewhat by the low cost of living in my new home province. Also the company offers absolutely no benefits (no insurance of any kind, bonuses etc.)and they are very disorganized and seem to operate a little on the un-ethical side at times. (Its a very tiny firm.) One would wonder why I took the position, truth be told, I was in a circumstance where I really needed the job since I was haveing dificulty gaining employment where I was located (I was previously on contract employment and spent some time working in the US upon graduation). My experience level is great.
This all being said..and to update all of you who are graciously supplying your helpful advice and opinions,
...they still have not supplied me with the final draft of the contract. Before the holidays, I was told that they gave the contract to their lawyer to review and that a few minor changes were made. They said they would give it to me in the new year. They said they encourage me to have my lawyer review it. I don't really have a lawyer and I don't really like the idea of paying for one to tell me what I already know from all of you.
So this is where it stands. There has been no mention of the contract since my return (typical as they generally seem to of the procrastinating nature). I have pretty much decided that there is no way I can sign the contract. Even if I was totally content here all things point to this contract being harsh and ridiculous. Apparently this is their first attempt at having employees signing a contract like this. The other EIT here has no contract at all. He started about a year ago.
I guess I am asking you all for advice again...I think I have made a mistake moving here to take this position. I am now pretty settled here and feel I have to stay for a least a while. This firm offers me nowhere near what my career expectations and goals are. I am getting no support and have done nothing the above the level of techncian since I began. And even thats been when they finally get around to awknowledging that I even work here. Very strange. I can't even begin to state the peculiar way this firm operates.
So..here's my idea...
there a few very reputable firms in this same city that I would be really keen on joining. They are in fact competition to my present firm. I really want to apply at these places but how on earth can I do that ethically and discretely? How would it look to the other firms? I feel I'm between a rock and hard place but I need to do something.
Thanks again to everyone and thanks in advance for your further advice.
Regards.
RE: MY CONTRACT - advice please
my situation is not unsimilar in that I relocated to an area where employment options were available, but not a lot of them. It is my opinion, and i stand to be corrected on this, that there is nothing wrong with doing a little networking in your community and putting out feelers on what other employment oppurtunities are out there. It is actually not that bad of a situation, since you are employed and making some dough while you look. there is an opinion out there i realize that you may "owe" your employers some time, but gauge the investment they have made in you to this point and judge accordingly. If a large amount of training dollars and relocation dollars were spent, then you may want to consider sticking around for a year or two in order not to burn any bridges. If not, then I wouldn't feel overly obligated to stick around. But in the end, it is up to you, and if your firm is somewhat "unethical" as you say, and you feel better about getting out now, then do it and don't look back.
Bottom line, if you are changing positions because you are not adequately challenged in your current position and feel it is impeding your development as an engineer, no one will look down on you for making the change, quite the contrary. Changing positions, especially as a junior engineer is very common, and those who might hire you know this.
good luck, and let us know when you find the job you are looking for
dutchie
RE: MY CONTRACT - advice please
RE: MY CONTRACT - advice please
I’d think that the courts would uphold the restriction. It’s my understanding that in Canada, as long as the restriction has a term and a geographic area of applicability that the courts would view it as not being overly restrictive to your employment and intended to protect the companies investment in you. One year and one province is not all that great a restriction.
I see three options
1) Accept the agreement and live with the consequences. (Restricted future employment)
2) Reject the agreement and live with the consequences. (Potential immediate unemployment.)
3) Attempt to renegotiate the agreement into something less restrictive. This could be a shorter time period, restricted to current clients, limited to specific fields of engineering. You should be prepared to give up something to get some reductions elsewhere. For example offer them 2 years but restricted to current clients of the firm at the time of your leaving or for only part of the province. (I sometimes use as a negotiating method to simply ink amend the contract, initialling the changes and return it asking that they ratify the changes.)
One thing I would never attempt would be to sign the contract and them violate the contract. You may eventually get some skills that a future employer wants badly enough to agree to pay any damages but you could be held to be acting unethically and lose your license. Any firm that would participate in this would also be unethical and not somewhere I’d want to work.
The best you can hope for after signing the contract is to get a job with a firm that will move you out of province for one year and then return you when the restriction is limited.
If you are unhappy now and think that the firms locally are a good bet then by all means approach them and apply for a job. If your current employer is “unethical” then they will have this reputation and you might want to get out before you have this reflect on you.
Quitting soon from an “unethical” company would not be seen as a negative, simply explain discretely that you felt that you did not fit in to their methods once you arrived. Anyone in the know will understand and no further explaination will be necessary.
Rick Kitson MBA P.Eng
Construction Project Management
From conception to completion
www.kitsonengineering.com
RE: MY CONTRACT - advice please
Use some of the comments made in this thread about why employment contracts are typically used - and why those conditions don't apply to you. Explain the hardship the terms of the existing agreement would have on you and your future.
Ask for a written response, and a meeting to discuss the available options. Make your letter polite, non-threatening and non-judgmental. Try to avoid a confrontation while letting your views be known.
Your letter will do several things at once. First, you will clearly establish your refusal to sign the existing document. Any concerns about that document becoming a de facto binding agreement will immediately vanish. You will put the ball squarely in managements' hands - where it belongs. They will have three options:
- Fire you on the spot;
- Meet with you to find mutually agreeable terms; or
- Think it looks too much like non-profitable work and procrastinate for a few more weeks or months. They may even drop the idea altogether.
I'm betting on 3. - based on what you have said so far.Even in the absence of a written agreement, you have an "at will" employment agreement. That's okay, because it means that both parties must agree on your continued employment - and the agreement can be broken at any time by either party for any reason. The company made certain representations about the work environment to you during the interview process. Your comments suggest that you feel that you've been duped to some extent. They have broken the agreement already; at this point, you should not feel guilty about leaving if that is in your best interest. But look for a new job in a discreet manner.
Remember: look out for your own interests. I assure you that "management" is looking out for theirs -
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RE: MY CONTRACT - advice please
RE: MY CONTRACT - advice please
I also, think that this question is best asked to an attorney and not in an engineering forum. No offense to everyone here but engineers typically do not know much about the law including myself. We just speculate what the legalities are.
RE: MY CONTRACT - advice please
Some of us do have experience in this area...from both sides of the table. My ex-partner wanted to explore having our employees to sign non-competes; I thought it was a stupid idea, frankly. I wouldn't want an employee who wanted to work elsewhere -
And you should also note that many of us have advised richarda to seek local legal advice.
You should get used to negotiating and signing contracts. It's how business is done these days. Long past are the days of a firm handshake and a man's word, unfortunately.
Do you have some particular expertise in this area, JPatten?
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RE: MY CONTRACT - advice please
I may just be an engineer, however, I preside over a substantial business interest. As such, it has been in my best interest to educate myself in points of law that may be of concern to myself and my business interests. It is not wise to underestimate a persons knowledge-no matter who it is.
If any party brings suit to enforce a contract, the prevailing party is usually able to collect reasonable attorney fees and court costs. Think about that before defaulting on a contract!
Wether this contract is enforceable or not is up to the local courts to decide.
"When a man with money meets a man with experience, either the man with the money gets the experience or the man with the experience gets the money" -unknown author.
RE: MY CONTRACT - advice please
Focht3: In answer to your question, I (self-admittedly) am not an expert in this area. (Sometimes knowing what you don't know is more important than what you do know.)
I am married to a lawyer and have discussed these types of agreements with her, though not specifically the situation presented here. My wife is an attorney with an undergrad in Mechanical Engineering. She is currently legal counsel for a large engineering firm. She's told me that the law does not generally look favorably on these type of agreements, but that they can be enforced in most jurisdictions if they are written narrowly enough. She's also told me what I put in my original message, which is that firms do not usually enforce rights they have if it's not cost-effective to do so. (Still since the agreement could be enforceable, RICHARDA would be wise to check with an attorney who knows the law in the Province where the job would be.
ERV: With all due respect you don't go to a lawyer with an engineering question, so why would you go to an engineer for legal advice? Your statement that "the prevailing party is usually able to collect reasonable attorney fees and court costs" is not the rule in the US. Unless there is a contract provision stating that the "losing" party pays the prevailing parties fees and costs, each party would pay it's own costs.