Should I sign a non-solicitation with my employer?
I’ve resigned from my job. My employer verbalized that my commissions will be held until I sign a departure agreement which includes a non-solicitation/non-compete clause. Can you tell me if they legally need to pay my commissions and earned wages even if I refuse to sign that agreement and demand payment? Is there any liability for me if I don’t sign?
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First, commission is due regardless of anything else, where earned and vested.
Second, here the terms are overbroad and would not be enforced. I would not be concerned. These non-compete clauses are hardly being enforced. Courts are not enforcing them unless they are very narrow in scope. Here it is a serious restraint on employment and not something a court would enforce — and frankly, not something an employer typically pursues.
Third, many elect not to rock the boat. In other words, sign, take the commissions, and then move on when the time is right.
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I’ve resigned from my job. My employer verbalized that my commissions will be held until I sign a departure agreement which includes a non-solicitation/non-compete clause (included below). Can you tell me if they legally need to pay my commissions and earned wages even if I refuse to sign that agreement and demand payment? Is there any liability for me if I don’t sign?
5.1 Non-Solicitation of Personnel & Customers. For twelve (12) months following the Termination Date, Employee will not directly or indirectly solicit, hire, or contract with any person employed by Company, nor solicit business from any customer or prospective customer that Employee contacted or learned about while employed by Company.
Have you already received your final wages and any accrued but unused PTO as stated in the agreement?
No, I have not received my accrued but unused PTO, nor my final commissions.
Are you seeking legal advice on whether you are obligated to sign the non-solicitation/non-compete clause in order to receive your commissions and earned wages?
Yes, but I also want to know if I should refuse to sign any of the other clauses, or refuse to sign that document at all.
Is there anything else the employment lawyer should know before I connect you? Rest assured they’ll be able to help with your refusal to sign clauses.
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Hello and welcome. My name is Daniel, and I’ve been a licensed lawyer for over 21 years. I'm truly sorry you're going through this, and I'll do my best to provide clear answers and address your questions with care.
To get started and better understand your situation, I have a couple of quick questions:
- Is the commission fully vested and earned?
- How much is owing?
$12,000.00 – Commission settlement based on an estimate of future commission earnings.
Okay, thank you. Is there anything else you'd like me to consider about this situation?
Let me know if I’m obligated to sign this agreement in any form ahead of receiving my commission and accrued but unused vacation payments.
Thanks for sharing that with me. I really appreciate it. I’ve prepared your answer with your concerns in mind. Take your time reviewing it, and if anything is unclear or you have more questions, just let me know. I’m here to help.
First, commission is due regardless of anything else, where earned and vested.
Second, here the terms are overbroad and would not be enforced. I would not be concerned. These non-compete clauses are hardly being enforced. Courts are not enforcing them unless they are very narrow in scope. Here it is a serious restraint on employment and not something a court would enforce — and frankly, not something an employer typically pursues.
Third, many elect not to rock the boat. In other words, sign, take the commissions, and then move on when the time is right.
Does all of that make sense to you?
That makes sense. So if I sign this with the understanding that the terms are not enforceable, collect my commissions, then I start working for the competitor and soliciting customers, can my former employer come after me at all legally?
That's what I would do, and yes.
I want to make sure the answer is clear and that you fully understand it. If you have any follow-up questions or need clarification, please feel free to ask. Otherwise, if everything makes sense, just reply with “all set.” Thank you!
I appreciate you! Last question — is it ill-advised to request that my employer remove the non-solicitation clause altogether before I sign because my lawyer said it’s not enforceable (or for some other convincing reason)? Thank you for your help!
I don't recommend pushing back because it could lead to termination and non-payment. Non-solicitation language is enforceable, but customers can choose where they go. Cheers and great chatting with you.
All set, thanks!
Perfect, thank you! Have a great weekend!
Dan
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