[lawstudent2]

I am a lawyer - and the headline is completely misleading.

Continued employment is, in fact, new consideration. Each new paycheck you get, in an at-will employment relationship, is further consideration.

This meshes perfectly, without any dissonance, with the commonly understood function of at-will employment.

The judge did not say that you can impose non-compete retroactively, for no new consideration, or that non-compete can be imposed on an employee who has an otherwise negotiated and executed employment agreement.

In other words - this represents absolutely no change, whatsoever, from the commonly understood function of at-will employment. Water wet, sky blue. Move along here, folks.

[DannyBee]

Are you a lawyer or a law student? :)

"The judge did not say that ... non-compete can be imposed on an employee who has an otherwise negotiated and executed employment agreement."

This is plain wrong. They said exactly this. Did you read the case (STANDARD REGISTER CO. V. KEALA)?

One of the people involved had a non-compete imposed after they had already signed and executed an employment agreement. The court said this is fine :)

As it quotes "it is not logical for a court to treat differently a covenant presented on the first day of work and one presented one week after the first day in the at-will employment setting. "

[lawstudent2]

I'm a practicing corporate lawyer - i just have the same sn on reddit as on here.

And yeah, I did read the case, and you are wrong. A contract between an employer and employee is not an employment agreement - in this case, it was an NDA. Your quote literally contradicts what you are saying:

"it is not logical for a court to treat differently a covenant presented on the first day of work and one presented one week after the first day in the at-will employment setting. "

At will = not an employment agreement. You can - and often, do - sign NDAs, in addition to a whole bunch of other paperwork, on the first day of your job as an at will employee.

Let's put it another way: having an employment agreement is the opposite of being an at-will employee. One cannot be both. Having an at-will employment agreement, recognized in a contract, is still not an employment agreement - an employment agreement specifies a fixed term of employment.

Can't make it any clearer than that.

For the record, I'm a practicing corporate and IP attorney. I handle a lot of employment stuff as well - it comes with the territory.

[DannyBee]

". A contract between an employer and employee is not an employment agreement"

It seems you are limiting the term "employment agreement" to cover fixed-term employment contracts and what they entail. As a practicing corporate and IP attorney (which I am as well), you should pretty well know nobody uses it that way, not even courts. There are such things as at-will employment agreements. You are correct that non-fixed duration employment contracts are generally at-will, but that does not make them any less of employment agreements. If you do not believe you can make an at-will employment agreement, i don't know what to even tell you. Would you like me to cite 50 cases that disagree with you? :)

All employment is by contract, and all these contracts are employment agreements, whether they are implied contracts (which is what most at-will employment is, for sure), collective bargaining agreements, explicit negotiated agreements, or whatever. I can make a verbal at-will agreement too! It's still an employment agreement.

It is true that, in for example, california, labor code specifies at-will employment as the default employment relationship without a contract, but that does not mean if you have a written contract you cannot be at-will, or you cannot have an employment agreement (most of the written employment agreements that are at-will make you explicitly agree you are at will and cover a salary. These are very clearly employment agreements, as they cover your employment status and terms of your employment, etc). It also doesn't mean a verbal agreement wouldn't overcome that default.

But I guess if we fundamentally disagree on terminology, we aren't getting to space today.

[dctoedt]

Another corporate and IP attorney here. DannyBee's view is held by many, many attorneys, me included.

(Nit & rant on DannyBee's comment: In the legal context, I wish people would stop using the colloquialism verbal agreement as if it meant only oral agreements and excluded written agreements. The primary meaning of the word verbal is "of, relating to, or consisting of words," from the Latin verbum, word [1]. A non-verbal agreement might be one that is reached, e.g., by sign language; by raised eyebrows and nodded heads, as long-time married couples sometimes do; or by other gestures.)

[1] http://www.merriam-webster.com/dictionary/verbal

[lawstudent2]

I follow - in my practice, when dealing with the phrase "employment agreement" it almost always refers to an agreement with a fixed or minimum term of employment.

This is all beside the point. The central point is that an at-will employment agreement, reduced to writing or otherwise (NB: in NY State, it is explicitly the case that a contract regarding employment must be in writing if it is of an indefinite term, else it violates our statute of frauds - this has been dealt with affirmatively by the court of appeals) is definitionally terminable for any reason or no reason, at any time, without notice. In this regard, it is a type of adhesion agreement, and acceptance of each payment of consideration acts as a renewal of the agreement. As a result, its terms may be changed, at any time, by either party, where payment and acceptance of consideration acts as ratification of those terms, so long as the terms are not explicitly illegal.

This was my point. And that is the way this decision came out. It is 100% unproblematic.

Feel free to debate the semantics of whether an "employment agreement" means any contract relating to employment (is an NDA an employment agreement? What about an offer letter?) or if it can also mean a fixed or minimum term agreement (NB2: I've been involved in many labor disputes and maybe the use of "employment agreement" is dealt with as conceptually separate from "at will employment" more frequently by labor lawyers - I know that the labor lawyers I have worked with don't seem to use the two phrases interchangeably). It is not what I was arguing at all. And DannyBee got it wrong, explicitly. The judge explicitly limited the discussion to at-will employment.

To put it another way: this decision should only be surprising to someone who doesn't know about at-will employment or standard american employment practices. Having overseen the contentious separation of a dozen high level executives at my various clients, and having overseen the "employment agreements" (both at will and for fixed terms, just to be clear) for many, many dozens more, I can assure you, this decision, even if it were issued in New York, doesn't change my practice one iota.

[x0x0]

Here, btw, is the case

https://casetext.com/posts/continued-employment-adequate-con...

My understanding is, if your Hawaiian employer demanded you sign a noncompete, you could quit on the spot and the noncompete would not apply. Is that correct?

[lawstudent2]

> My understanding is, if your Hawaiian employer demanded you sign a noncompete, you could quit on the spot and the noncompete would not apply. Is that correct?

Yes.

[jdmichal]

(IANAL)

It might instead be beneficial to you, in terms of unemployment benefits and such, to instead refuse to sign and allow them to terminate you instead.

[tsotha]

That would have to be true, wouldn't it? How could your employer hold you to a contract you didn't sign?

[FrankenPC]

Doesn't this require a signature? If so, depending on the life circumstances, couldn't this be perceived as signing a contract under duress?

[jmount]

(I am not a lawyer, this is not legal advice or even my full opinion) I think that is the point. Terminating at-will employment isn't considered a threat/duress. One can't be for at will employment and against allowing employers to add new conditions to continue employment, because as the original commenter said that is the concept. Now a completely separate issue is if you are for at will employment. And like so many things it is important to use what it is defined to be (an not just the name) to make your judgement. Similar issue: "right to work states" (gotta decide that one again on what the laws say, not the title).

[Retric]

IANAL, but it might qualify if it where given without warning. As in sign this in 5 minutes or walk out the door. Though adding these out and giving someone a few days to sign or simply adding an effective date in the future would not qualify as duress.

Case in point people in some states are given a day or two to back out of a new car sale presumably due to high pressure tactics used at dealerships.

[jmount]

Pretty much I agree. The "car deal back out" is because somebody passed a law to encode that. Similarly if you want employees to have reasonable rights- you have to pass the matching laws. I definitely think nobody should be walked out the door with zero severance- and that is why I am willing to support legislation that yields some employee rights.

I don't want to press my opinion too much. But I find it very frustrating when I hear people claim they are unconditionally in favor of "at will employment" and then claim they think some of the consequence are unfair and should not be allowed. I sincerely wish such people would revise their statements and say they are not fully for at will employment.

[jdmichal]

(IANAL)

I guess the idea is, how does the fact that the employer can walk up to you at any point regardless and say "walk out the door" interplay with other facts and laws? Are you just constantly under duress? I would assume not, since you also have the mirrored right to just walk out the door of your own volition at any point.

I can see logic the in interpretation that this arrangement basically results in the constant ability to reconsider the employment agreement: "If you don't like it, you can leave at that very moment. Otherwise, you are bound to it."

[hwstar]

I think you have touched on the problem with At-will employment in general. Yes, at some callous employers you could face a "culture of fear". You won't be constantly under duress, but you could be miserable most of the time.

The problem as I see it is that the power of At-will employment rests mostly with the employer. It is asymmetrical. Most people could not afford to lose their job without serious financial difficulties, and if they disagree with some new policy in principal, then the only choice is to resign, be forced out, or continue working under the new policy.

Most employees will never be in a situation where they can say "Screw you, I'm not signing that". There's too much at stake. There are multiple reasons for this:

The job they hold does not pay them enough to save and emergency fund.

They don't practice good financial judgement.

They are ignorant of the risks of at-will employment.

They are in their comfort zone and don't want to push back.

They signed a non-compete agreement.

[tsotha]

>The problem as I see it is that the power of At-will employment rests mostly with the employer. It is asymmetrical. Most people could not afford to lose their job without serious financial difficulties...

By the same token most employers can't afford to have key people walk out the door without serious financial difficulties. Anyone who thinks this is asymmetrical has never been tasked with making sure projects are staffed. Most technical people have left an employer in the lurch at some point.

[ori_b]

If that's the case, wouldn't that imply that a huge class of transactions for basic life necessities -- rent, most bills, etc -- be under duress as well?

That seems like a useless and counterproductive interpretation to me.

[kd0amg]

"Under duress" seems to be a somewhat fuzzy classification, but most of these necessities have either very low costs for switching to another counterparty (if I don't like one grocer's offer, there are plenty of others around I can go to instead on the spot) or some limitation on what they can require (e.g., no kicking a tenant out without a month's notice). At-will employment seems to be the odd one out here, in that switching to a new job normally takes quite a bit of time and hassle.

[Lawtonfogle]

Contract law is going to become far more complicated if 'yes means yes' and 'enthusiastic consent' ideas are ever applied to it.

[brewdad]

How long does the period of continued employment need to be in order to be considered further consideration?

As a thought experiment, can I present you with a sign-or-else NDA on Monday. You sign it on Tuesday and I fire you on Wednesday?

Suppose my plan was to fire you regardless of whether you signed or not.

Now prove it. /evil

[lawstudent2]

> How long does the period of continued employment need to be in order to be considered further consideration?

Non-zero.

In reality, my guess is that because courts don't love to see non-competes overbroadly upheld in the fist place, if you have a super restrictive non-compete that was given to you in exchange for $20, and it was given to say, a burger flipping teenager, or someone with dubious employment status, or huge medical bills, something else that made it an unequal bargaining position, it is very likely a court would reduce the scope of the non-compete or throw it out completely.

There are no hard and fast rules in non-compete-land. Courts can and do throw them out or reduce their geographic or conceptual boundaries relatively often. And the rules are not particularly byzantine or arcane - they are pretty straightforward. Sophisticated parties making a deal that includes valuable consideration in exchange for a business restriction will be upheld - a punitive contract for little money that basically prevents a worker from practicing his fungible skillset and keeping out of the taxpaying economy may not be.

[s73v3r]

"Continued employment is, in fact, new consideration."

That is complete horseshit.

[pc86]

Thank you for the well-reasoned and eloquent response.

Snark aside, whether it is or is not actually depends on what state you're in. For many, it is not new consideration.[0]

[0] http://www.beckreedriden.com/wp-content/uploads/2012/09/Nonc...

[PhantomGremlin]

Very informative. So much varies by state. E.g. in Oregon:

   Continued Employment is Sufficient Consideration: No

[pc86]

Some are a clear yes, some are a clear no, some are yes after a certain duration (I imagine to prevent notice the day before you get a paycheck, that sort of thing), some are yes under very specific circumstances.

[lawstudent2]

Are you getting more money?

Yes?

More money = more consideration. End of story.