In the February 22, 2011 Ask The Headhunter Newsletter, a reader worries about employers that bury little bombs in job offers that might get the new employee fired…
I read about an employee who sued after her company fired her for refusal to sign its new two-year non-compete agreement. She was fired for “non-compliance with company policy.” The court reaffirmed an old decision from California that an employer cannot lawfully require the signing of a non-compete agreement as a condition of continued employment, but I don’t know whether she has actually won her case. This raises the bigger question: How can people protect themselves against these kinds of surprise “attacks” from their own employers?
Here’s the short version of my advice: (For the entire column, you need to subscribe to the free weekly newsletter. Don’t miss another edition!)
Was it really a surprise? Or did she in fact agree to sign a non-compete agreement (NCA) when she accepted the job? According to your story, she wasn’t fired for refusing to sign the NCA, but for failing to comply with company policy. That’s key.
Your story reveals one of the big gotchas that people don’t think about when they accept a job offer. Most job offers include words along these lines: “By accepting this offer you agree to abide by the rules of the company’s employee policy manual… If you don’t, that’s grounds for dismissal.”
Thus, when you accept the terms in a job offer letter, you’re agreeing to additional terms defined in other company documents. How’s that possible? It’s called incorporation by reference. The offer letter references the policy manual, thus the policy manual is incorporated into the job offer—and so are its terms.
…My guess is that this is the essence of the court case you’ve described. She may have naively agreed to sign an NCA when she took the job. That may be why the company’s position is that she’s not in compliance with company policy.
So, what does this mean to the happy-go-lucky job hunter who gets a headache trying to understand a job offer? It means caveat emptor. Let the buyer beware. It’s up to you to understand what you’re agreeing to. A few tips:
First, read the offer carefully. (Or, back up a step. Make sure you have the job offer in writing.) [Details are in the newsletter. If I give you everything here, you'll never sign up!]
Second, ask for all documents incorporated by reference in the offer. [More in the newsletter.]
Third, before you sign the offer, ask to see all documents you will be expected to sign after you accept the offer. [More in the newsletter. You'll love it.]
I’m not a lawyer, and this is obviously not legal advice. It’s common sense based on experience. Remember that the company hired a lawyer to write all those documents. You are about to commit to a salary deal ($50,000? $150,000? More?). You’re at a disadvantage if you don’t have your own lawyer review the details of the deal.
(The flip side of this advice about offer letters is about employment contracts. If a company doesn’t give you a contract, maybe you should ask for one: Employment Contracts: Everyone needs promise protection. While such contracts are usually reserved only for executives, Bernie Dietz’s article makes a powerful argument that everyone should have a written employment contract.)
When you accept a job offer, you’re agreeing to live under the company’s rules. Have you seen the rules? Do you understand them? Don’t be so eager to accept the salary that you ignore the other components of the offer. Don’t wind up asking your lawyer after the fact, Did I really agree to that?
Oh, no! Getting a job offer is very exciting, especially if you decide to accept it. But sometimes, there are little bombs hidden in that offer, and in the documents you must sign before you start the job. Today’s Q&A is about such an explosion: The NCA. Have you ever been burned by terms in a job offer that you didn’t notice when you accepted it? How did you deal with it?