How can a company compel a W2 employee to sign a non-compete agreement? Assume the company is in Delaware and been taken over by a larger corporation: If one already has the job, is it possible to for the larger corporation to compel existing employees to sign non-compete agreements? Assume subject is in DE and is a W2 employee (no contract or 'term')
A company generally cannot compel an employee to agree to a non-compete, but they have a wide variety of alternatives for inducing employees to do so. Most obviously, they may threaten to fire employees who refuse, whether immediately or at the end of their current term, as another answer observes. Indeed, if Big Company makes an NC a condition of employment then they are likely to insist on the same for employees they obtain from Original Employer. Firing employees for refusing to sign does, of course, put them in the job market as potential competitors, but the company may well find it acceptable to do that on their own terms. In particular, Big Company can ensure that those who won't sign go out the door with minimal knowledge of Big Company's clients, trade secrets, etc. other than those obtained from Original Employer. And that leads into other forms of inducement. Big Company can do some or all of the following things, depending on the particular employment situation: offer bonus compensation for signing promote those who sign and / or demote / reassign those who don't change job duties for those who refuse to sign do all manner of nastier things to be unfriendly to employees who refuse to sign Some of those fit directly into Big Company's perceived interest in avoiding employees using Big Company internal information to jump ship and compete with them, and others could fit into Big Company policy about which jobs require an NC. Some are just pressure tactics, but that does not necessarily make them unlawful (nor are all variations on the others necessarily lawful).
It is not necessary for an agreement to be verbose and written by a lawyer, for it to be binding. There is some danger in having untrained people writing up agreements (they don't know the distinction between "what the law says" versus "what we had in mind"). The agreement is binding, but their interpretation of the contract language does not automatically prevail. The statement "ALL TUTORS ARE PAID 8 HOURS, unless told otherwise" is slightly problematic since it is not true (you can't pay time, you pay money for time spend). With no other statements about time and payment, and just looking at the words, this says that an employee will be paid for 8 hours work, period. Unless they say something different. That could mean "even if you work 20 hours, you only get paid for 8" (illegal under various labor laws), or it could be "even if you only work 2 hours, you get paid for 8" (the most reasonable interpretation). The interpretation "You are limited to 8 hours of work per pay period / contract" is not a reasonable interpretation: that isn't what the clause says. Such a limit could be clearly expressed ("can work up to 8 hours" is a clear way to state the limit), and since they didn't say anything like that, that is not how the courts will read the clause. They can, however, inform you otherwise, e.g. say "your minimum automatic pay is now 2 hours", or "we will only guarantee 2 hours work", and at that point that's what the number is. Since this is (presumably) a take-it or leave it contract which they wrote up and you didn't actually negotiate, any unclarities are legally interpreted in your favor. If you have worked more than 8 hours and they are using the contract language to argue that you won't be paid for the overage, that is not at all likely to hold up in court. Under terms of the contract (interpreted as stating a minimum guarantee of hours), they can inform you that your new minimum is 0 hours. Also, unless there is some kind of tenure clause, they can terminate the contract at will, and maybe they'll hire you under a different contract. What the terms of employment were for you in the past does not matter, what matters is what the current terms are. If you did not pay attention to the fact that they changed the terms of the agreement as of this quarter, that is not their problem. If they decided to change to "actual hours worked" after the current contract was formed, and they informed you of that fact later, then thereafter that is what the agreement is. Until you are notified of that change, the guaranteed minimum is what it says in the contract. In case their argument is "The university sets this policy, the department made a mistake in not informing you", the university has to take responsibility for the errors of their inferiors.
You are probably an employee Answer these questions: Can you say “no” when the University offers you work? Or vice-versa, can they say “no” when you want to work? Can you subcontract the work? That is, can you hire someone to do what the University hired you to do? Do you control how and when you work? For example, when you break University rules are you subject to University discipline or is this treated as a breach of contract? Do you provide your own tools and equipment? Can you make a profit or loss (if you get paid by the hour the answer is “no”)? Do you take out your own public liability and/or professional indemnity insurance? If the answers to most of these questions are “no”, you’re an employee.
are they legally allowed to make me to pay for it now? Unfortunately, yes. Contract law entitles them to charge you that amount only because --as it appears from your inquiry-- you signed the contract with (or despite) your awareness of that clause. Perhaps from other terms in your contract you might have the possibility to overcome that liability. For instance, apropos of the fact that you possessed the requisite knowledge beforehand, whether the company intentionally misled you into thinking that you would gain any valuable knowledge from the training (other than the very particular way the company wants certain tasks to be performed). However, that is hard to assess without knowing more details of your situation.
are contract terms enforceable that say the employee has to pay the employer if they leave without giving notice? Yes, as long as the penalization is not of punitive nature. The doctrine of at-will employment is only the default condition, but a contract may supersede it. As for the extra question, reciprocity of sanctions (as in leaving without notice) is not a requirement for enforceability of a contract. In general, the lack of reciprocity only signals that there is a difference in the parties' bargaining power, but usually that does not affect enforceability.
I don't think so. When it comes to wages, there may be a Tarifvertrag (union-negotiated wage schedule), which may apply even if the employee in question is no union member. It is enough if the employer is member of the employer's association negotiating the schedule, or in certain other cases. (Clever, really, by extending union benefits to non-members they weaken the unions ...) The Tarifvertrag stipulates minimum wages for certain positions, and it may define those positions implement that. An employer could not underpay a skilled machinist by calling her a 'gadget specialist' or similar non-scheduled position. But the deputy department head is likely paid above the highest bracket of the wage schedule, called außertariflich (AT, beyond the schedule). At this level, it comes down to individual negotiations between the employee and employer.
Does a contract become null and void if some or most of its terms were not followed by one (or both) of the parties? No. Parties' temporary or systematic waiver of their contractual rights does not alter the validity or terms of that contract. Parties entitled to resume enforcement of their rights anytime. A party's noncompliance with his obligations gives the counterparty a viable claim of breach of contract, although the proper approach would be to first try to solve the dispute outside the court. In the employment scenario you describe, the employee is entitled to --at least-- back pay as per the second contract (the difference between $75 and $50) subject to the statute of limitations, which under NJ is six years for contract disputes. See Hagans v. Nickerson, Superior Court of NJ (Oct. 2022), (citing NJSA A:14-1(a)). This precludes the recovery of some of the back pay if &quot;the employee wishes to enforce during his 7th or 8th year of employment&quot;. A &quot;retroactive&quot; enforcement of other rights might be available, depending on the nature of those rights and other details. But nothing prevents the employee to henceforth enforce all of his rights pursuant to the current contract. Can the employer argue that the employee &quot;waived his right&quot; to the second contract by not enforcing it and acting as if it never existed? As explained above, no. Nor does it make sense for the employer to argue in terms of &quot;a right to the second contract&quot;. A contract establishes a set of rights [and obligations], whence &quot;a right to a set of rights&quot; would reflect the employer's poor understanding of the ramifications of the contract he signed.
I've litigated cases like these before. The IRS enforcement reaction is swift and severe. Penalties for the employer are heavy and rarely waived. It would be rare for a business like this to stay operational long enough to issue a W-2. A business like this would probably be shut down by the IRS and have the people responsible for the payroll function, at a minimum, promptly burdened with tax liens, within four to six months. These cases also constitute a significant share of all criminal tax prosecutions. The odds of someone doing this spending several years in federal prison is high. Generally speaking, if the wrongdoing is fully on the part of the employer without the collusion or knowledge of the employee, the IRS will not force the employee to double pay the taxes that should have been withheld by the employer in this situation. Instead, this IRS will try to recover the amounts that were withheld from the employees but not delivered to the IRS. It will seek to recover these amounts from the employer and also from other responsible persons in the organization (and from outsourced professionals) with the authority to pay the IRS who did not do so. There may be circumstances, if push comes to shove, where the IRS could collect from the employees in a case like this one (I've never had occasion to need to research that issue), but that would be the rare exception and not the rule, in practice. On the other hand, if the employer simply does not withhold taxes or prepare W-2s at all, and either 1099s people who should have been classified as employees (or files no information tax returns at all), the IRS will generally insist that the employee pay income taxes on the full amount owed and that they pay the employee part of payroll taxes. It will also pursue the employer for the employer's share of payroll taxes. The employer will also be jointly and severally liable for any taxes that should have been reported and subjected to withholding that are not paid by the employee (perhaps because the employee spent all the money). Sometimes cases like this are also criminally prosecuted, but it is less common to do so.