Forced to sign NDA or no notice period Context: I currently live in India and working remotely as a Software Engineer for a Dutch company since August 2018. I have got a residence permit for the Netherlands starting next month and was about to migrate for the company. During the last 4 months, I have been working over 60 hours a week and completed the must-have features of the product. I had signed an employment contract that states: Parties are free to terminate this agreement prematurely taking into account the statutory notice periods. Notice of termination will only be valid if it is in writing. The term of notice of termination to be observed by the Employer is, when the employment agreement on the effective termination date has lasted: (a) shorter than five years: one month; (b) five years or longer, but shorter than ten years: two months; (c) ten years or longer, but shorter than fifteen years: three months; (d) fifteen years or longer: four months. The term of notice of termination to be observed by the Employee is one month. Further, Article 15 - Governing law and jurisdiction This agreement, and all non-contractual rights and obligations arising thereto, are governed by and will be interpreted in accordance with the laws of The Netherlands. All disputes related to this agreement, or the agreements concluded in the performance of or in connection with this agreement, will be submitted exclusively to the competent court of Midden-Nederland. On the 3rd of December 2018, I have been verbally laid off and had been given a two months notice period to find a new job until 31st January 2019. Recently, my employer sent me an NDA with the clause below. He has provided me with no incentive to sign the NDA but he will end my work straight away without any notice period. This would hamper my chances of getting another job in the same field(AI &amp; Software) as the company has a very generic business description and a variety of products. Non-Competition Unless with the prior written consent of the Company (which shall not be withheld unreasonably), the Partner shall, for a period of 1 year following the last disclosure to it of Confidential Information not be directly or indirectly involved in any activity (aimed at) competing with the Business. What are my options here? Can I take legal action if he decides to let me go without notice if I refuse to sign the NDA? Further, no written notice has been given yet does that mean it is still not valid?
This is not an NDA (non-disclosure agreement), it is a non-compete agreement. An NDA would tell you that you cannot disclose anything you did or saw at your old employer's place. A non-compete agreement is what you have here, an agreement that limits your ability to get work. If what you say is correct, then your employer is not exactly the brightest. You stay that you haven't been given a written notice, and your contract says that a "Notice of termination will only be valid if it is given in writing". So you haven't been given valid notice. There is no reason why you would sign the non-compete agreement. If they plan to fire you without notice if you don't agree, they have a problem: Your contract doesn't allow them to do that. And they have apparently not given any written notice yet. So what they can do is as soon as they decide that you are not signing, they can give you one month written notice.
If I did not sign promotion bonus document, my career would be over. Is this duress? No. The premise is hardly true or even logical, and what you describe falls short of duress. Not every imbalance of bargain power implies duress. First, it seems that you could have declined the bonus, thereby preempting the sanction/remedy for leaving within 12 months. Second, it seems hard to prove (and unrealistic) that your career would have been over if you refused to sign the document. The employer can easily refute that allegation by pointing out that there are many others who did not sign that employer's document and yet work elsewhere as investment bankers. You would need certain, additional context to reasonably allow for a conclusion that your career altogether depends on what happens with this single entity. Third, your mention that "the bonus mitigates the horrendous weekly hours" reinforces the idea that signing the document was your preference (namely, for the purpose of obtaining some additional, non-compulsory stimulus) rather than employer-inflicted duress. The rationale and decision for acceptance of those conditions reflects that you knowingly exercised your freedom of contract. A party is not entitled to void a contract only because he belatedly changed his mind about conditions of which he was aware beforehand.
we would like to know whether we have sufficient legal grounds to sever/terminate/exit this contract with Superior Management Co.*, if the company does not mutually agree to do so. No. In that event the HOA is stuck with the contract at least for the remaining part of the current period. The HOA's concern that the provider could breach the contract by significantly underperforming seems speculative and does not entitle the HOA to breach it first. Changes in the name and/or ownership of a party does not alter the parties' rights and obligations pursuant to the contract. This implies that neither party is entitled to disavow his obligations by terminating the contract altogether. For early &amp; unilateral termination to be an option, it would have to be provided in the terms of the contract itself.
The page you link is a good summary. It describes the employer obligations under the Ontario Employment Standards Act. Eating periods are described at section 20: 20 (1) An employer shall give an employee an eating period of at least 30 minutes at intervals that will result in the employee working no more than five consecutive hours without an eating period. Exception (2) Subsection (1) does not apply if the employer and the employee agree, whether or not in writing, that the employee is to be given two eating periods that together total at least 30 minutes in each consecutive five-hour period. This section has been applied several times by the Ontario Labour Relations Board and appears to have been given its plain meaning. There are two ways that the Act lets an employer provide those breaks: Provide full 30-minute eating period(s) so that the employee works no more than five consecutive hours without an eating period. By agreement, provide two eating periods that total 30 minutes, &quot;in each consecutive five-hour period&quot; If proceeding by option two, the 30 minutes of eating period have to occur &quot;in each consecutive five-hour period.&quot; The Ontario Labour Relations Board has described these two options and has said that option two requires the breaks to be &quot;within&quot; each consecutive five-hour period. See Rusty's at Blue Inc. / M &amp; S Accounting v Erica Solmes, 2022 CanLII 56373 (paragraph 125, emphasis in original): Section 20 requires an employer to give an employee an eating period of 30 minutes after no more than five consecutive hours of work, or (with the agreement of the employee) two eating periods totalling 30 minutes within each consecutive five-hour period. Whether an employee is entitled to a single 30-minute eating period or to two eating periods totalling 30 minutes, the eating periods must be uninterrupted. The other answer and the page you link also describes an &quot;exceptional circumstances&quot; exception, but that is describing section 19 of the Act. Those exceptional circumstances can only let an employer get around the requirements of sections 17 and 18. Those are not relevant to the eating-period requirements. An employer may require an employee to work more than the maximum number of hours permitted under section 17 or to work during a period that is required to be free from performing work under section 18 only as follows
There is no &quot;normal&quot; or &quot;standard situation&quot;. The parties are free to negotiate whatever terms they like within any limitations imposed by law. If you're unhappy with the proposed terms then you should either negotiate to include a liability limitation clause, refuse to agree the NDA, or consider whether the benefits of signing it outweigh your concerns. If you are entering into the NDA as a consumer and with a trader, then in england-and-wales, you might have some protection from Section 62 of the Consumer Rights Act 2015 which provides: (1) An unfair term of a consumer contract is not binding on the consumer. (4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. For example, a contract which imposes unlimited liability on a consumer, while capping the liability of the trader, could be unfair. This will very much depend on all the circumstances and what the contract as a whole says: (5) Whether a term is fair is to be determined — (a) taking into account the nature of the subject matter of the contract, and (b) by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends. A term also can't be assessed for fairness if it specifies the main subject matter of the contract (which arguably a liability clause in a NDA does) and the term is transparent and prominent (see Section 64). &quot;I also don't understand the following wording: ...breach of this Agreement may cause irreparable harm to XXXXXX. Therefore, in addition to any other remedies available to XXXXXX, XXXXXX may obtain injunctive relief in the event of any breach or alleged breach of this Agreement without proving actual damages.&quot; What this is saying is that, in addition to all the usual actions that the other party could take against you for breaching the NDA (e.g. suing you for damages in the event that they suffer a loss from your breach), they can also apply to a court for an injunction without needing to prove that your breach caused them any loss. An injunction in this case would be a court order requiring you to stop breaching the NDA (e.g. to stop divulging information subject to the NDA).
You asked about other jurisdictions. As you'll probably be aware (from cases like EU vs Microsoft and EU vs Google) European countries and culture tend to have much stronger protection laws for consumer and employee rights than the US does. In the UK you could make a strong case, although such cases are not often undertaken. The current legislation is Part 2 of the Consumer Rights Act 2015, but the unfair contract terms clause goes back to at least the Unfair Terms in Consumer Contracts Regulations 1999. Basically the law protects a person in a situation where disparity of size and bargaining power have led to unfair terms in a contract (typically a large company offering "take it or leave it" standard terms) - and specifically if they create a significant disparity in the parties rights and obligations. In such a situation the company which drafted the terms alleged to be unfair must show they are reasonable. A list of common terms likely to be seen as unfair is provided. (Employment terms are covered by other laws but also aim to prevent abuses due to inequality of contracting power) A company which sold a product like Windows 7/8/8.1 and then later said "we are changing our terms of support and forcing you to upgrade" (especially to a different product the user may not want, or a product that is maintained in a different way),would almost certainly be at substantial risk of falling foul of this. It wouldn't matter if it was done by not providing the support/patches as originally implied (by custom or normal expectation) or as agreed in an explicit statement of support life cycle, or by saying "we have the right under the contract to do this", or by forcing what is essentially a change of product to get the updates. It also wouldnt matter how big they are, nor whether or not the user had already agreed "because I felt I had no choice". The law is there specifically to protect against abuses like this, so it is drafted to catch companies who try to find "wriggle room".
Can non-competes be enforced after expiration? Strictly speaking, it can no longer be enforced. Instead, company X may still obtain remedies for your breach of contract (I am definitely not "condemning" you, as I totally understand your position; I'm just explaining the vulnerability to which you are exposed). What you call expiration is more of a "freezing period" during which you were prohibited to work for company Y. But what matters is the concept of statute of limitations, which is the period during which company X may sue you for breach of the non-compete clause (and hence, breach of contract). The statute of limitations for breach of contract varies by jurisdiction. In jurisdictions of the U.S., typically it is three or six years. It was risky for you to rely on company Z's "assurance", especially if Z did not memorialize --in writing-- that it would defend you in the event that company X sues you for breach of contract (after all, Z alleged being "confident they could defeat the non-compete if necessary"). Furthermore, company Z's allegation that your promotion nullifies or supersedes the "old" non-compete seems devoid of merit, at least at first glance. One would need to know the terms of your contract with company X to ascertain whether company Z's assessment is accurate.
Some jurisdictions tend to favor non-compete agreements, others hold most of them to be unenforceable. From a very quick search, BC is a little reluctant to enforce them, but they can be valid if sensibly drawn. However, the text you included in the question is not a non-compete agreement at all, it is a non-solicitation agreement, a much less restrictive agreement, which is significantly more likely to be upheld. The agreement quoted in the question does not mandate the employee continuing to work for the employer for any minimum time, not two years, and not six months. (Another provision might specify a required notice period, but that was not quoted and may not be in the agreement.) The agreement quoted does not prohibit the employee, after s/he leaves the job, from working for a competitor of the former employer, not even for a brief period. What the agreement quoted does do, is prohibit the employee from asking individuals and businesses who were customers of the former employer for orders for the same products as are sold by the former employer. This applies to orders on behalf of the employee personally, on behalf of a new employer, or on behalf of a business in which the employee has some sort of ownership stake (such as partner or shareholder). That is all that the quoted language prohibits. This means that the employee cannot ask those who were customers of the old employer, to buy from or through him, the same products that the old employer sells. It does not mean that the former employee cannot sell such products, if the inquiry comes from the customer. This sort of agreement is primarily aimed at preventing a salesperson from taking a client list with him or her to a new employer, and trying to get them to move their business from the salesperson's old employer to his or her new employer or business. If the employee is primarily an instructor and does not also act as a salesperson, this agreement will have almost no effect on him or her. This site discusses such agreement an myths about them in BC, Canada. It says: Non-competition clauses can be enforced by courts in BC. It is true that employers face an uphill battle in getting a judge to agree to enforce a non-compete, but it can and does happen. If you are wondering whether your non-compete will stick, ask an employment lawyer. Enforceability of a non-compete depends on the specifics of the wording of the clause itself and the overall employment contract. Some key considerations are whether the clause is clearly worded, and whether it is limited in time, geography and scope of what is covered. If a non-competition clause is enforced by a judge, it will only be applied to prevent the employee from the specific activities listed. If the employer has missed something from the clause, or there is a “loop-hole,” that is generally fair game. Many contracts include non-solicitation (aka non-solicit) clauses, which are meant to prevent the employee from contacting clients. Non-solicitation clauses are still an uphill battle to enforce, but slightly easier than a non-competition clauses. This is because non-solicits don’t dictate where an employee can work, just what business they can seek out. Even if there is no contract, obligations to respect confidential information, and fiduciary duties (in the case of key employees) last beyond the end of employment and can limit competition. An online paper on &quot;Is my Employee’s Non-Compete Agreement Enforceable?&quot; by Lisa Stam says: In Canada, courts have generally been reluctant to uphold agreements that have the effect of restricting an individual’s ability to earn a living or pursue the job of their choice. Indeed, courts take the initial position that restrictive covenants in employment agreements are unenforceable, unless the employer can demonstrate otherwise. A restrictive covenant must jump through several hoops to be deemed enforceable. ... A non-solicitation agreement will allow a former employee to work for a competitor, but prevent them from soliciting the clients (and possibly the employees) of their former employer for a specific period of time. Former employees may have close relationships with clients. Allowing them to solicit these clients may give them an unfair advantage against the former employer in the marketplace. If the employee does not solicit the client, but the client leaves to follow them anyway, there is little an employer can do. ... If a court finds a restrictive covenant clause unreasonable, for example it restricts solicitation for 12 months when 6 would have been reasonable, they will not read it down to fix it. Canadian courts require the employer to get it right the first time and a flawed clause will therefore normally be unenforceable. In short, the above quoted agreement may not be enforceable. But if it is, it only restricts solicitation, not competition, and does not require the employee to work for the employer for a period of two years, or any other minimum time.