Clause in employment contract- re not working for competitor

Work Permits, Employment Qualifications, Employer Problems
Forum rules
While the moderators are happy to help point people in the right direction for legal assistance and to attempt to keep these forums civil and tidy, please bear in mind that an Internet forum is not the place for providing or receiving legal advice or for the creation of any attorney-client privileges or obligations. Also keep in mind that Forumosa and the moderators cannot conduct comprehensive reviews of all laws or legal concepts referenced or discussed within these forums – laws and regulations are updated and amended, interpretations do change, and sometimes the legal landscape can change very fast. Forumosa provides these legal forums for general informational purposes only. By using these legal forums, you agree that the information does not constitute legal or other professional advice and no attorney-client or other relationship is created between you and any other posters on these forums. DO NOT CONSIDER THE FORUMS TO BE A SUBSTITUTE FOR OBTAINING LEGAL ADVICE FROM A QUALIFIED LICENSED ATTORNEY.

Re: Clause in employment contract- re not working for competitor

Postby Tobiasgar » 29 Aug 2011, 18:51

But the Employment contracts change the "at will" relationship, restricting your ability to terminate employees who aren't working out. Typically you agree only to terminate "for cause" unless you're at the end of the contract term, which opens your decision to second-guessing by the courts as to whether your cause was adequate.

If you draft an employment contract, pay special attention to the termination section. You might want a clause denying certain benefits if you terminate for cause--such as committing a felony or acting in a way that's clearly harmful. Some employees might negotiate "double trigger" clauses, in which they can resign "for good reason" (such as being reassigned to another department) and still be entitled to a severance package.

Given the complexity and issues involved, you can understand why employment contracts are usually reserved for key employees. Certainly, always consult your attorney about clauses to include and avoid. :2cents:
Tobiasgar
Càiniǎo
Càiniǎo
 
Posts: 32
Joined: 29 Aug 2011, 17:39



Re: Clause in employment contract- re not working for competitor

Postby Eiger John » 07 Sep 2011, 14:56

The Labor Standards Act sets out a bunch of minimum standards that basically trump whatever junk is in many contracts -- the LSA exists as a way to protect employees against a whole range of illegal or unacceptable practices. However, the LSA doesn't apply to every single foreigner -- many country managers are on "mandate" agreements by which they can be removed at any time by the board of directors.

In evaluating the strength of a non-compete promise, it's important to know more about the contract, the position the person is under, and whether the non-compete is reasonable in geographic scope and duration. In many cases, what the employer wants to protect via a non-compete agreement would be more appropriately protected under a confidentiality/non-disclosure agreement and under Taiwan's body of trade-secrets law. Non-solicit provisions provide a different way for companies to protect themselves: 1) against a former employee poaching all their best employees to work for a competitor (solicitation of workers); or 2) against a former employee soliciting business from his former company's customers. Regarding the latter, it's pretty standard for the provision to restrict that to the customers on whose matters the employee had worked during the 12 months prior to termination of the employment agreement or for those potential customers that the company had approached to make proposals to in the 12 months prior to termination.

In some cases, the use of non-competes gets a bit ridiculous. You can't really ask a doctor, dentist, plumber, lawyer, etc. to simply stop doing what they do for a living. And you can't have a non-compete so restrictive that it leaves other people with absolutely no way to make a living. I reviewed an employment contract once where a local company was trying to impose non-compete obligations on secretaries!
"Power always thinks it has a great soul and vast views beyond the comprehension of the weak; and that it is doing God's service when it is violating all his laws." - John Quincy Adams

Article on enforcement of foreign court and arbitral decisions into Taiwan: http://goo.gl/hGXGG
Article on Cross-Strait intellectual property basics: http://goo.gl/ub4vA
Eiger John
Breakfast Store Laoban (zǎocān diàn lǎobǎn)
Breakfast Store Laoban (zǎocān diàn lǎobǎn)
 
Posts: 143
Joined: 13 Jul 2009, 17:14
Location: Taipei
6 Recognized(s)



Re: Clause in employment contract- re not working for competitor

Postby urodacus » 07 Sep 2011, 15:19

OP is a kindergarten teacher. How can you not work for a competitor once you quit this job if that's all you can do?
The prizes are a bottle of f*!@#$% SCOTCH and a box of cheap f!@#$#$ CIGARS!
Forumosan avatar
urodacus
Maitreya Buddha (Mílèfó)
 
Posts: 11282
Joined: 04 Nov 2004, 23:20
Location: banished by the Illudium Q-36 demodulator
194 Recommends(s)
249 Recognized(s)



Re: Clause in employment contract- re not working for competitor

Postby bigduke6 » 07 Sep 2011, 21:44

urodacus wrote:OP is a kindergarten teacher. How can you not work for a competitor once you quit this job if that's all you can do?


I would also assume that the OP is teaching kindergarten illegally, so any contract would be illegal/non enforceable too.
Jesus Quintana: Let me tell you something, pendejo. You pull any of your crazy shit with us, you flash a piece out on the lanes, I'll take it away from you, stick it up your ass and pull the fucking trigger 'til it goes "click."
The Dude: Jesus.
Jesus Quintana: You said it, man. Nobody
fucks with the Jesus.

Mr.Lahey: The shitabyss!
Randy: Mr. Lahey, not another night of the shitabyss, please?!
Mr.Lahey: Ah, fuck it.

If you talk to god, you're religious. If god talks to you, you're psychotic.
Gregory House

I got me a dog and named her Mybitchniggaeater.
2Pac
Forumosan avatar
bigduke6
Mandarin Marvel (Guóyǔ gāoshǒu)
Mandarin Marvel (Guóyǔ gāoshǒu)
 
Posts: 1885
Joined: 19 May 2011, 11:58
Location: Kaohsiung
72 Recommends(s)
132 Recognized(s)



Re: Clause in employment contract- re not working for competitor

Postby engerim » 20 Sep 2011, 23:23

I just quit a job and they asked me to sign similar things as I quit. I think I'll just not sign it :)

In chinese the paragraph is:
乙方同意於離職之日起兩年內,非經甲方事前書面同意,不得為下列行為:
(1) 以自己或借用他人名義經營或投資與甲方同種類相互競爭之事業。
(2) 兼職、任職於前項與甲方相互競爭之事業,其居間或媒介者亦同。

In English that would be (what I think):
Worker agrees within two years from the date of departure, unless authorized in writing by the company to consent to the following:
(1) not by himself or by helping others to have operations in the same kind of business or competing with the companies business
(2) not to do part-time work that is competing with the companies activities, or doing work that is similar to the companies business

They have other paragraph about trade secrets and so on which (what I think) would be already covered by general law.
So why should I bother signing it as I just quit?! Basically I offered them to compensate me for above if they need it, whereas they suggested to strike above paragraphs in that case!

There was no such stuff in my original contract.
Well I still don't see the point of signing the rest. Suppose handing in a notice and giving them back their stuff is enough (legally) when you leave a job?!
I even got a survey with a lot of questions (starting with easy stuff like "how did you like it here and so on" but then some questions like "who is your next employer, whats his name and address, who are his customers" seemed a bit too much to me so I kind of left that one blank too!
Forumosan avatar
engerim
Betelnut Beauty (bīnglang Xī Shī)
Betelnut Beauty (bīnglang Xī Shī)
 
Posts: 1505
Joined: 01 Aug 2005, 00:54
Location: Taiwan
8 Recommends(s)
16 Recognized(s)



Re: Clause in employment contract- re not working for competitor

Postby Eiger John » 23 Sep 2011, 14:48

Sounds like a wise idea. Basically, trade secrets are covered by a body of law within the Trade Secrets Act and, potentially, the Criminal Code. It can be a useful reminder to outgoing employees but signing a promise on the way out the door not to tell anybody the employer's trade secrets really isn't adding any new obligation. In this case, though, it's clear that the non-compete isn't important to them or else they would have paid something for it. Some companies that forgot to get a non-compete into the original agreement will, in the midst of firing an employee, sweeten the severance package a bit to get the employee to sign off on non-compete, non-solicit language.
"Power always thinks it has a great soul and vast views beyond the comprehension of the weak; and that it is doing God's service when it is violating all his laws." - John Quincy Adams

Article on enforcement of foreign court and arbitral decisions into Taiwan: http://goo.gl/hGXGG
Article on Cross-Strait intellectual property basics: http://goo.gl/ub4vA
Eiger John
Breakfast Store Laoban (zǎocān diàn lǎobǎn)
Breakfast Store Laoban (zǎocān diàn lǎobǎn)
 
Posts: 143
Joined: 13 Jul 2009, 17:14
Location: Taipei
6 Recognized(s)



FRIENDLY REMINDER
   Please remember that Forumosa is not responsible for the content that appears on the other side of links that Forumosans post on our forums. As a discussion website, we encourage open and frank debate. We have learned that the most effective way to address questionable claims or accusations on Forumosa is by engaging in a sincere and constructive conversation. To make this website work, we must all feel safe in expressing our opinions, this also means backing up any claims with hard facts, including links to other websites.
   Please also remember that one should not believe everything one reads on the Internet, particularly from websites whose content cannot be easily verified or substantiated. Use your common sense and do not hesitate to ask for proof.
Previous




Proceed to Legal Issues at Work



Who is online

Forumosans browsing this forum: No Forumosans and 1 visitor

On the iPhone, hit the Space bar twice at the end of a sentence. You get a period, a space, and a capitalized letter at the beginning of the next word.
More tips from David Pogue