Employment Law Questions? Ask an Employment Lawyer.
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CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT
I acknowledge and agree to the following material terms and conditions of my employment by Loewy Design Inc. ("Company"):
at Company's request and without additional compensation, execute any patent, trademark or copyright papers covering such intellectual or intangible property, as well as any other papers which may be considered necessary by or helpful to Company.
9. The failure of Company to enforce any term or condition of this agreement shall not be deemed a waiver of such or any other term or condition of this agreement This agreement shall be governed by the laws of the State of New York applicable to contracts negotiated and fully performed in the State of New York.
Name (Please Print)
__________________ City, State, and Zip Code __________________ Telephone Number
__________________ Social Security Number
And did you have any specific questions / concerns about this agreement?
Yes, my concern is that my current employer is being sued by a former employee for firing her while she was pregnant. We are planning on starting a family soon and I don't want to sign anything that will allow me to be fired while pregnant. Also I just wanted to know in general if there was anything in the agreement that was illegal. Thank you Scott
Can you tell me the approximate size of this employer?
(that is, how many employees it has?)
There are 10 employees
Thank you. Please give me a few minutes while I review the language of this agreement...
Ok, no rush - I'll be getting ready for work and taking my dog out. I'll check back in a bit. Please call if you need anything that's holding you up - XXX-XXX-XXXX.
Thank you. Paragraph 1 is a restatement and reiteration of the law of an at-will employment relationship (standard). 2 and 3 pertain to intellectual property and who owns it, etc... 4 is a non-compete agreement, which is probably not enforceable as is (3 years is a pretty long period, and courts will not enforce long non-competes, although it can "modify" (they call it "blue lining" or "blue penciling" the agreement to a shorter period). 5 and 6 are the non-disclosure clauses, in that you agree not to disclose proprietary information, and that you agree that this information is the property of the company. 6.1 (or 7) and 6.2 (or 8) are merely affirmative statements that you make as to what you will not do, and establishes a "presumption" of harm if you do. 9 is a non-waiver clause, in that the company is saying that they don't have to enforce one clause to enforce another (that is, it's not an "all or nothing" contract, but they can pick and choose what they want to enforce without the entire contract being thrown out). That paragraph also has the choice of law clause, in that NY law will control.
The only clause that could possibly implicate any rights if you were to get pregnant would be the first paragraph concerning at will employment.
One more thing to add - my employer sent this to us saying that our Payroll company (ADP) is requiring we sign it or else the payroll company won't process our paychecks. I called the Payroll company and they knew nothing about an NDA. Is it legal for him to require I sign this under false circumstances?
At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...).
It's legal for him to misrepresent so long as the misrepresentation is not material to your deciding to sign it or not. That is, misrepresentation is actionable civilly (in a civil lawsuit) if you can show that you would not have signed it but for that misrepresentation.
So if I were to sign this, and tell them I'm pregnant they could still legally fire me for no reason?
But it would be difficult to establish that, because if it was likewise a condition of employment, then the fact that he said that the payroll company is requiring it as well, that probably would not be something that would be able to be successfully challenged.
As for the at-will nature...
One moment while I see if NY laws have anything specific to pregnancy...
The problem with pregnancy discrimination is that the laws start applying with 15 or more employees. That is, it's not illegal or actionable for an employer to discriminate against pregnant individuals if the employer has less than 15 employees. Now this former employee might be suing on a disability claim (disability discrimination is different than pregnancy discrimination), but the pregnancy discrimination act comes into play with 15 or more employees.
Ok, thank you for your help
You've given me the answers I need
If the employer has 10 employees (and this is not for this office alone, but anywhere) then there would not be any specific laws in that regard.
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