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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 90120
Experience:  20+ Years of Employment Law Experience
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My employer asked me to sign a new employment contract which

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My employer asked me to sign a new employment contract which will not allow me to work in this field (Chimney Sweep) anywhere within a 200 mile radius for 3 years and will require me to pay back for all certifications training I have received. I have worked for this employer for almost 7 years and in 2006 I signed an employment contract which would not allow me to work in this field within a 50 mile radius for 3 years and no mention of repayment for certification training. My employer told me that he did not want anyone working for him that would not sign this new employment contract. I asked if I could think about it and he said I needed to be prepared to sign this new contract in the morning of 08/04/2011. What should I do? I need my job.
Submitted: 3 years ago.
Category: Employment Law
Expert:  JB Umphrey replied 3 years ago.

MI-Lawyer :

Thank you for using JustAnswer!

I am sorry to learn of your circumstances.

MI-Lawyer :

From your last sentence, it would appear that you've already made your decision.

MI-Lawyer :

Can you please clarify what is your actual question that you would like to receive information about?

Customer:

Are you kidding me? If my employer fires me tomorrow if I do not want to sign the new agreement then I will owe him nothing, BUT if I sign this new contract I could be hurting myself, if he fires me on Friday? I thought of apealing to his sense of fairness, but he was clear that he wants me to sign this new contract. I asked about changing it to only apply if I quit and not apply if he laid me off, but he would not consider it. I thought contracts should be mutually agreed upon terms, beneficial to both parties. This contract seems to only protect the employer and not the employee. I DO NOT accept you answer above as it appears to me you put no effort to research any alternatives that might be open to me.

MI-Lawyer :

I understand that you are very upset by all of this.

MI-Lawyer :

I have not supplied an answer to your question.

MI-Lawyer :

Rather, I requested additional information from your.

MI-Lawyer :

However, I do not want you to be upset by the experience and, I am happy to opt out so that another expert may assist you.

Customer:

Since the MI-Lawyer Opted out - I WILL NOT ACCEPT AND WILL NOT PAY AND WILL PUT THIS $45 FEE IN DISPUTE WITH MY CREDIT CARD.

Expert:  Law Educator, Esq. replied 3 years ago.
I am sorry you are upset, but please realize this system works by a back and forth interaction between customer and expert and we try to exercise common courtesy with one another. Thus, becoming enraged and rude with an expert does not help you and it does not help the process.

Under MD law a non-compete agreement is enforceable ONLY if it is reasonably designed to protect a legitimate business interest of the employer. Thus, to be enforceable the agreement must be reasonable as to the scope of the interest being protected, the geographic scope and the time scope.

In Maryland, only two interests of the employer are considered protectable. But these interests are protected regardless of the method of termination. See Hebb, III v. Stump, Harvey, and Cook, Inc., 334 A.2d at 569 (Md. App. 1975)(holding the non-competition clause “binding where the employee has ‘ceased’ to be employed”). The first employer interest protected is unfair competition by the former employee through misuse of trade secrets, customer routes, or client lists. The second instance when the courts will enforce a restrictive covenant is where the employee provided unique services. Millward v. Gerstung Int'l Sport Educ., Inc., 302 A.2d 14, 16 (Md. 1973).

Reasonable geographic scope is considered the area in which the company normally conducts business and as such this agreement would likely be found unenforceable outside of that radius.

Additionally, the maximum reasonable time is 2 years and as such, 3 years would be generally be found to be unenforceable unless they can show you were a key employee/owner of the company. See: Becker v. Bailey, 299 A.2d 835, 838 (Md. 1973).

Maryland courts employ the "blue-pencil" rule, which means that any part of a non-compete agreement they find unreasonable they can modify to make it reasonable. Holloway v. Faw, Casson & Co., 572 A.2d 510 (Md. 1990).

Thus, the terms of geographic scope and time are likely unreasonable here, but the court would generally modify the geographic scope and time scope under the blue pencil rule.


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Customer: replied 3 years ago.

Thank you! Your response was helpful and you actually makes some valuable points, particularly the mileage issue since I have never gone over 50 miles for a job. But, you did not address the change in the new employment contract where my employer says that I will have to repay all training fees for certification upon exit of employment. After I acheived certification I have been required to continue training credits to maintain certification. Repayment of training costs was never in my original employment contract. Is it reaasonable for this to be added to a new employement contract. I am afraid that my boss will fire me for not agreeing to sign this new agreement or if I do sign the new agreement that he could turn around and then fire me. I am uncomfortable with either possibillity. Thank you for your assistance so far.

 

I was not trying to be rude or enraged, I simply felt scammed with the first response. It seemed like something a psychologist might say rather than a lawyer reaction. I look forward to hearing about the training fees and I do not have a problem with your advice so far.

 

Thanks again,

Expert:  Law Educator, Esq. replied 3 years ago.
The employer can impose charges for training fees if you do not remain employed, but if they are seeking to do this indefinitely, then you need to negotiate this clause, since it is unreasonable and it is likely also unenforceable in court. These clauses typically have a time limit from the time of training, usually 2-3 years. However, as written this is unreasonable since this initial training was paid for in 2006. You do take a chance if he will not negotiate the issue of training reimbursement in that if you sign it means you would have to litigate with him over this clause being unreasonable, but the decision ultimately is going to be yours to risk having to litigate it and keep your job or insist on it being removed and the other unreasonable clause modified before you sign it and having him fire you.

The clauses so far are unreasonable and arguable, but unlike the non-compete clause, the reimbursement clause is something the court may or may not modify if you agreed to it in this new contract and that is a risk we cannot really predict an outcome on.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 90120
Experience: 20+ Years of Employment Law Experience
Law Educator, Esq. and 9 other Employment Law Specialists are ready to help you

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