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Non-Compete and Non-Disclosure Agreements Clarification

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ms.melaqui


Arresto Menor
Should those two agreements be included in employment contract or should be separate and signed individually? If non-compete agreement is within the contract, will this be valid without specific length of time? Thanks in advance.

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Lunkan


Reclusion Perpetua
If you put an unfair long or no time limit non-compete paragraph in a contract, and the ermployee sign it, then that employee is stupid* and I suppouse you don't want stupid employees Smile

*OR perhaps that employee is CLEVER, IF no time limit make the contract unvalid haha I don't know.

You don't either want to keep unmotivated employees. If the time limit is long, they can feel they HAVE TO stay, although they don't want to...

I would put Non-disclosure in same contract, including telling a MINIMUM punishment fee to scare employees from spreading business secrets. Otherwice it's big risk they tell something important by ACCIDENT when tsismis Laughing
Some don't understand such can make HUGE damage, so they don't understand they risk to pay MUCH if they tell such. TELL it to them too, so they surely understand what they promise to reduce YOUR risk.

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thepoetsedge


Reclusion Perpetua
Both stipulations in an employee contract are generally valid.

For non-compete clauses, as long as the span of time is not too long (should not exceed at least 2 years in range) and that the limitations held therein are conscionable, then it is valid and binding to the employee.

Almost the same grounds can be held for non-disclosure agreements, especially for those in managerial positions.

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ms.melaqui


Arresto Menor
thepoetsedge wrote:Both stipulations in an employee contract are generally valid.

For non-compete clauses, as long as the span of time is not too long (should not exceed at least 2 years in range) and that the limitations held therein are conscionable, then it is valid and binding to the employee.

Almost the same grounds can be held for non-disclosure agreements, especially for those in managerial positions.

But what if there was no specified span of time for both? Is it still valid?

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thepoetsedge


Reclusion Perpetua
There should be a specified limit, because an indefinite amount of time in both clauses shall be held to be unconscionable in any competent court.

The contract should be clear enough as to how long both clauses are. If it is unclear, then it should be ineffective as per our laws regarding contracts in the New Civil Code.

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ms.melaqui


Arresto Menor
You enlightened me. Thanks a lot for the both of you.

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thepoetsedge


Reclusion Perpetua
ms.melaqui wrote:You enlightened me. Thanks a lot for the both of you.

We are happy to be of help. Good luck with your situation, and may you be given the proper resolution that is due and just for everyone involved.

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heartofachampion


Arresto Menor
Hi. Is a non compete clause applicable kapag same industry pero sa ibang bansa base yung lilipatang company? Especially pag walang nakalagay na specific jurisdiction doon sa NCC? My NCC is one year after resignation. Thank you

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freedamn


Arresto Menor
Hi.

I am also experiencing non-compete clause filed by my recent employer. Stated that I am prohibited to apply after resignation for two years to any direct competitor or company engaged in same line of business. Since I am not happy physically, emotionally and financially, I applied to another company (U) which has almost same line of business, though not all. My recent employer (D) is construction finishing materials, and my present employer (U) is handling rough construction materials.

My non-disclosure contract was pre-prepared meaning, I have nothing to do but to sign. It's a "take it or leave it" situation signed during our meeting in Mindanao area. Since i really needed a work, so I signed it.

They filed a case for collection of money due to breach of contract amounting to P50,000.00 within 10 days from receipt, I brushed off the said demand, even I am employed with Company U as of now, I did not share any technical aspects, manner of operation because physically I am in a warehouse and in Company D I was in a one-stop shop. I don't have connections with our suppliers and customers, and even sales I have no idea.

I called the HR Head of Company D immediately and telling me to resign to Company U. I am much benefited financially, giving my family greener pasture and good economic living. If I did not resign, they will sue me. I asked them since I worked honestly and competently to them if I can pay "partially", then say "NO".

I am just an ordinary employee who only sought good and benefited living for my family. I don't have enough money to pay them in full. This April I received a one page Court Hearing to be held in Mindanao, financially I don't have money to pay for my airfare just to attend the said hearing.

"You shall not inhibit yourself for a period of two years from the date of effectivity of your separation from working directly or indirectly at company engaged in business competitive to COMPANY D including but not limited to; LISTED are COMPANIES NAME, but from where I worked now is not listed.

Should I treat this seriously? What is the best thing I should do? Gusto ko na po kase makatulog ng maayos, magtrabaho ng maayos.



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Lunkan


Reclusion Perpetua
freedamn wrote:Hi.

I am also experiencing non-compete clause filed by my recent employer. Stated that I am prohibited to apply after resignation for two years to any direct competitor or company engaged in same line of business. Since I am not happy physically, emotionally and financially, I applied to another company (U) which has almost same line of business, though not all. My recent employer (D) is construction finishing materials, and my present employer (U) is handling rough construction materials.

My non-disclosure contract was pre-prepared meaning, I have nothing to do but to sign. It's a "take it or leave it" situation signed during our meeting in Mindanao area. Since i really needed a work, so I signed it.

They filed a case for collection of money due to breach of contract amounting to P50,000.00 within 10 days from receipt, I brushed off the said demand, even I am employed with Company U as of now, I did not share any technical aspects, manner of operation because physically I am in a warehouse and in Company D I was in a one-stop shop. I don't have connections with our suppliers and customers, and even sales I have no idea.

I called the HR Head of Company D immediately and telling me to resign to Company U. I am much benefited financially, giving my family greener pasture and good economic living. If  I did not resign, they will sue me. I asked them since I worked honestly and competently to them if I can pay "partially", then say "NO".

I am just an ordinary employee who only sought good and benefited living for my family. I don't have enough money to pay them in full. This April I received a one page Court Hearing to be held in Mindanao, financially I don't have money to pay for my airfare just to attend the said hearing.

"You shall not inhibit yourself for a period of two years from the date of effectivity of your separation from working directly or indirectly at company engaged in business competitive to COMPANY D including but not limited to; LISTED are COMPANIES NAME, but from where I worked now is not listed.

Should I treat this seriously? What is the best thing I should do? Gusto ko na po kase makatulog ng maayos, magtrabaho ng maayos.
That's evil and/or greed by D.
You better take it serious, because otherwice it's biger risk you will lose in court. I don't know if it's allowed in the Philippines to ONLY send someone to court representing you.
The main LEGAL question I see is if it's competitive or not. You tell you work far away now. Does D have business where you work now, or have U business at same part of Mindanao as D ?
If not, then I don't see any competition...
But you need to ANSWER the case anyway, arguing about that.
Plus PERHAPS you can argue about you don't have position or info which can hurt D so the contract is unfair (but you have signed it, meaning you agreed to it, which talk against you).

I suppouse someone else can answer much better if DOLE or such can assist you.
If not, ask DOLE. You can ask at the closest office where you are now, and if they say it's possible, then ask the closest office to where Company D is (or where the case will be handled).

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freedamn


Arresto Menor
Thank you for your reply. No, they don't have business where I worked now, and U is a sole proprietor here in our place, (no branches, no extension office).

I already asked assistance to DOLE, actually same thing they told me... my recent company is GREED.

The first thing I did after receiving the demand letter is calling them asking for consideration to make my payment partial since I don't have money to pay them in full but they didn't consider.

What if I really can't pay them? I'm just an ordinary employee.

The past years I worked with them, overtimes were unpaid, one hour store activities once a week, once the store alarmed any time of the night even I am at the middle of my sleep, I need to go there or obliged to go there. Accidents incur to my co-employees even out of working hours, still I need to go to the hospital, if I didn't do that, the Manager will counsel me. Emergency things like I need to bring my daughter to the doctor, and one time in the hospital because she was sick, my Manager didn't allow me.

My company was so unfair doing this to me. What else can I do?

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lukekyle


Reclusion Perpetua
the problem is bringing it up (your complaints) after you received the demand letter might infer to the one receiving your complaints that you are merely making it up. Very hard to prove yung mga unpaid overtime unless you have proof. I suggest looking for old logs from the security or even cctv footage.

Other than that if your former employer does press charges you have no recourse but to answer them in court

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Lunkan


Reclusion Perpetua
@fredann
"You shall not inhibit yourself for a period of two years from the date of effectivity of your separation from working directly or indirectly at company engaged in business competitive to COMPANY D including but not limited to; LISTED are COMPANIES NAME, but from where I worked now is not listed.
The important word in the contract is "competitive". If there are no such, then they have no case. (Suppoused to. We can never know for sure with courts.)
The first thing I did after receiving the demand letter is calling them asking for consideration to make my payment partial since I don't have money to pay them in full but they didn't consider.

What if I really can't pay them? I'm just an ordinary employee.
I wouldn't pay anything.
But if they go to court, you need to fight it. Perhaps someone can tell if you need to be there yourself or if you can let someone else argue for you.

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freedamn


Arresto Menor
Yes they already did, actually I am in Luzon area and the hearing was held in Mindanao. As per DOLE they are doing things impossible for me to attend. I already send my manifestation of motion but they have no reply yet.

I want to know what other step I can do?

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lukekyle


Reclusion Perpetua
since may case na, the only thing you can do is get a good lawyer

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freedamn


Arresto Menor
Is there a fighting chance to defend myself?

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Lunkan


Reclusion Perpetua
lukekyle wrote:since may case na, the only thing you can do is get a good lawyer
freedamn wrote:Is there a fighting chance to defend myself?
I don't know if Philippine courts let you pick anyone to defend you, or if it has to be a lawyer*
Otherwice you send any family member or friend who live close and is tough and clever enough.
The defence is not hard. Just prepare DOCUMENTS showing there are no competitive situation and argue against that part in the contract.

* (In my home country we can defend ourself if we want or pick anyone we want. I have defended both others and myself many times in court cases (but most of them of type which didn't needed attendance, because it was case types, where all arguing are done by writing. I wonn both cases for clients against other businesses. Harder to winn against officials Laughing but I have wonn around half of them too.)

You can check if it's allowed you SEND the documents and your arguments in writing. If so you can chose to just do that, but then you don't see if the judge and your opponent have an unjuste relation...

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freedamn


Arresto Menor
Wala pa din po sila reply sa manifestation ko. Ano po ang next step ko at ng plaintiff pagka ganoon?

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19 jmk on Wed May 04, 2016 8:20 pm

jmk


Arresto Menor
Hi. My contract does not specify it to be a probationary contract but is stipulated that I would undergo a probationary period. I understand that despite the absence of a regularization contract or document, i would be considered a regular employee upon reaching 6 months and as long as i have been allowed to continue to work.

My contract includes a non-compete clause and a two month termination period. I have been recently offered work with better compensation.

Question: Does the contract, non-compete clause and termination period still hold despite the absence of a  regularization contract?

Thanks.

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Lunkan


Reclusion Perpetua
freedamn wrote:Wala pa din po sila reply sa manifestation ko. Ano po ang next step ko at ng plaintiff pagka ganoon?
Answer the attorney the reason why you find the contract not being valid and see how they react. Try to write as an attorney would tell it but shorter Smile

During you want -
check if you can be represented by other IF it become a court case
and check if DOLE can assist you anything.

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Lunkan


Reclusion Perpetua
jmk wrote:Hi. My contract does not specify it to be a probationary contract but is stipulated that I would undergo a probationary period. I understand that despite the absence of a regularization contract or document, i would be considered a regular employee upon reaching 6 months and as long as i have been allowed to continue to work.

My contract includes a non-compete clause and a two month termination period. I have been recently offered work with better compensation.

Question: Does the contract, non-compete clause and termination period still hold despite the absence of a  regularization contract?
I don't know, but I asume Yes.

It seem them made a kind of permanent contract direct Smile

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council


Reclusion Perpetua
jmk wrote:
Question: Does the contract, non-compete clause and termination period still hold despite the absence of a  regularization contract?

Thanks.

A "regularization contract" is not required.

The whole contract remains valid except for any illegal or unjust clauses - of which I do not see any.

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jmk


Arresto Menor
I thought as much. Thank you and much appreciated.

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freedamn


Arresto Menor
Thank you for all of you who replied.

I have been very distracted emotionally and mentally this past few days because of the complain filed against me, I had nothing more to do but to pay what they are asking for.

I just wanna seek for help in making a reply letter that i will be paying what they demand, but in an installment basis for two months.

Thank you in advance.

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freedamn


Arresto Menor
Good day.

This is about my case complained by my recent employer. we had our last court hearing on May 30, 2016. as per clerk of court, my plea has been disapproved (to pay in one year non-compete clause of 50,000.00).

after weekly follow ups, clerk of court told me that it will be mailed and my chance of paying it partially is to talk to the sheriff.

until today, i haven't received any news or confirmation about it.

what should i do? as per my Attorney possible the complain has been dismissed. is it possible?

hoping for your reply.

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