I signed up because I need help. Anyway please see the fact below and I hope someone can help me.
Anyway here are the facts:
1. On January 7th my former company, an e-commerce/technology start up laid me off saying their new investors gave them a directive to lay off all sales staff because they plan to hire new ones that will be paid on commission basis only. This caught me off guard as I was the TOP PERFORMER of our group.
2. I was hired on August 18th and our contract was only given despite repeated requests on December 7th. Correct me if I'm wrong but contract terms must be discussed completely PRIOR to employment and not during.
3. The contract in my possession is NOT signed. Why? Because I told them that I wanted to check with my lawyer if the contract is okay. When I said this our so called CEO said that the President was not really looking to negotiate the terms of your contract. It's basically if you sign you have a job, if you do not then you don't have a job. This rubbed me the wrong way coz to me it smelled like duress.
4. I got my way and did not sign the contract on December 7th. I never did check with any lawyer but I noticed that my allowances were not specified and it looked like with the contract they could change the amount at any given time. So I told them that "my lawyer" wanted letter B - the clause stating the allowances I'm entitled to - modified to reflect my monthly allowances as that was part of my job offer. I emailed this to our president who was overseas by then, instead of our CEO who was in Manila and the president eventually agreed to stipulate the amount of my allowance in the contract.
5. So on December 10 I signed my revised contract which exactly like the one attached except now it said how much my allowances were. THEY DID NOT GIVE ME A COPY OF THAT CONTRACT. As can be seen in the final page in the attached it only states the name of the president - it did not bear his signature.
6. After they laid me off I asked them to let me off the non-compete which states that I cannot be employed by a DIRECT competitor. I told them a contract is a SIGNED agreement between two parties and since the agreement I signed did NOT bear the President's signature and I had no copy as far as I was concerned we do not have a contract.
7. The President wrote me back saying that he cannot let me out of the non-compete and that he'll send me my copy of the signed contract with my exit papers. Till now, I have NOT received a copy of my contract.
8. I am currently employed with with a company that is in the same industry as my former company. Based on the non-compete, it is my opinion I should be able to do so because I don't interpret my current company to be a direct competitor. Yes we have a couple of similarities but the differences are also very stark. There are things that my current company offers and does that my former company does NOT do at all. Our value propositions have some similarity in one particular area but as a whole they are quite different. (It's hard to explain this here because I cannot name names but suffice to say, if I was to put the names of the companies out there, you would understand. To give an analogy we are not like Globe and PLDT which clearly are direct competitors but more like Instagram and Twitter)
9. I received an email just this morning from the President of my former company "gently" reminding me of my non-compete this morning. He said it was rumored that I was working in the company that I am indeed working in and that he believes that working with my current company is in violation of the non-compete since he believes it to be a direct competitor. .So I think this will boil down to interpretation of what is a direct competitor and what is not.
10. My former company still owes me an incentive. Being top performer I was supposed to have received an Apple gadget as a reward for my performance. I won this incentive back in October and until now, it's nearly mid-Feb, and I am no longer with them, I have yet to receive this.
So my questions I guess are:
1) How should I handle this?
2) How does one determine a company is a direct competitor or not. I can see this already being THE POINT of contention. I truly do not see my present company being a direct competitor to my former one?
3) What do I do about my incentive? The Apple gadget? Do I just let that go so that they forget about my "non-compete"?
4) Is this even enforceable? I was a "manager" and my skill sets are not rooted in trade secrets. As for clients, we were never given a specific set of clients. We were simply told there are 16000 of the type of clients we go after in MM and we were told to check among those 16K are up to the quality and standards of my former company and sign them up. In fact when I went with my former company, I already had my OWN client list that I brought with me and that benefitted them.
5) The non-compete is for 2 years. I WAS WITH MY FORMER COMPANY LESS THAN 6 MONTHS. I find it a bit absurd that they can enforce it on me when i'm not even director level and was with them less than 6 months.
6) I still do not have the copy of my contract. What should I do there? The copy I do have with me is the unrevised one that is UNSIGNED!
PLEASE HELP. Need to know what to do regarding the contract and incentive as well as what to do in case they go after me for the non-compete.
Would appreciate any advice anyone knowledgeable can give me.
Thank you so much in advance!