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Non-Compete agreement Indiana

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  • Non-Compete agreement Indiana

    Yesterday I started a position as an Instructional Designer for a college. I thought I had already filled out all the employment papers ahead of time. However, yesterday they sprang a non-compete agreement on me.

    For a period of two years, if I leave voluntarily or involuntarily, I have to a agree to not work for any "Competitive Business". Competitive Business is defined as any post-secondary educational service or institution that offers any Competing Services. (That could be interpreted to include publishers that sell courseware, training institutions, or even companies that provide in-house training for employees.)

    Most employees, according to the document, would be restricted from working in Indiana or Ohio, but since my duties would include the design of online courseware, the geographic area in which I would not be allowed to work for another college or competing business is defined as the entire United States.

    In response to my concerns about this document, the VP of Human Resources emailed me that they would not care if I worked for another college as long as it was in another capacity than as an Instructional Designer (the field in which I have a masters degree). However, the document that I would be signing states that I could not work:
    1. in the same or similar capacity or function
    2. in any sales or marketing capacity
    3. in any executive or managerial capacity
    4. in any consulting capacity or function


    My main concern is the non-compete clause. However, the document also covers other areas, including that I have to agree to give the college copyright to all works of authorship created by myself, which will become their exclusive property. This, of course, would be reasonable to expect for all courseware that I create for them. However, in higher education, in order to advance, it is expected and necessary to publish articles or contribute to the writing of textbooks. It is not usual or customary for colleges to take ownership of those publications.

    I believe I have reason for concern as I worked for this college previously. When they decided to discontinue the program of which I was Director, they gave me two weeks notice and did not offer me another position. It took six months, and the whole interview process, to get rehired. While they now seem glad to have me back, I am well aware that once I redesign all their courseware they could very well decide again that they don't need me. I would then not be able to work at all in my area of expertise.

    If I sign this I will be signing under duress because I need the job. I know that in most states this document is much too restrictive to be upheld in a court of law. But Indiana's legal system seems always to work against the individual. Does anyone have any experience in this area?

  • #2
    Non-competes are enforceable in Indiana if the employer has a protectable interest & they must be reasonable as to the scope of activity restricted.

    You might run this agreement by a contract or employment attorney to see if they believe it is too restrictive to be enforceable.
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    • #3
      Originally posted by Betty3 View Post
      Non-competes are enforceable in Indiana if the employer has a protectable interest & they must be reasonable as to the scope of activity restricted.

      You might run this agreement by a contract or employment attorney to see if they believe it is too restrictive to be enforceable.
      It is also worth asking the attorney what happens to the noncompete if the university fires him/her. In some cases, courts have decided that if you leave voluntarily, you have to honor the non-compete, but if the company fires you, you are not bound by it.

      This one looks to be very broad (2 years, entire US, any management, consulting, sales, or marketing function for a university???) and there might be enforceability problems, but her attorney will know for sure.

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      • #4
        Thank you

        Thank you for the advice. The agreement covers leaving either voluntarily or involuntarily.

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        • #5
          Non-competes are getting harder to enforce generally because they are usually one-sided. The company (or university) generally has to give the employee just compensation to have the contract enforced. Just giving you a job isn't enough unless they specify that a certain portion of the wages/bonus is compensation for the non-compete. But I agree that you need an attorney to review it.

          Also, I do not believe you needing a job is considered "duress".

          As far as the copyright, it is not unreasonable for the employer to own any work you create while under their employ. You might ask that a notation of authorship is included on everything you write/create even though they would own the rights.

          Just my 2 cents.

          Dave

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          • #6
            i was involved in a lawsuit here in ohio,with the same paramaters as youre dealing with,a non compete agreement.

            the defendant won the case because the non compete was not spedific enough,like the one you described.

            the judge said it should enter the names of businesses,not just desciptions of businesses or your actions.

            Comment

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