Not signing the contract is one thing. Misrepresenting your position is something else. If you gave the impression that you agreed to the terms provided, then it's possible you could be held to those terms.
A contract isn't defined by a signature. A contract is defined by a "meeting of the minds." The signature is commonly-accepted evidence that such a thing occurred, but it's not essential.
By pocketing the contract rather than pointing it out to them, you've arguably violated the "meeting of the minds." The company was under the impression that was part of the agreement. You can dither about "due diligence" and say it was there responsibility to check, but in some cases that can be seen as an intentional misrepresentation on your part, for which there are consequences.
I will concede that this is unlikely to come back to bite you in practice. But others should be aware that it is technically playing with fire. And personally, I consider it unethical.
If they offer me a separate contract to sign for their non-disclosure terms and I agree neither verbally nor in ink, I think it's a stretch to call it a misrepresentation of my position. Given that this type of contract usually offers absolutely nothing in exchange, it would be more reasonable to assume that I don't agree, if I don't sign it or express agreement otherwise.
Also IANAL, but at the very least I don't think that this is unethical.
Verbally agreeing to the NDA then not signing might count. Signing a fake name would obviously count. Editing a digital contract before signing might count, and not highlighting the edits in a "track changes" negotiation would probably count. If you returned the papers and said "these are all set" or something, I guess you might be at risk.
But just... not signing a thing? If someone puts it in front of you without negotiating or asking for consent, then accepts it back unsigned? I've never heard of a lawsuit arguing anything even close to "I handed him a paper, so he should have spoken up to tell me he wasn't signing it", and I can't imagine it'd go anywhere.
(On which note, every NDA I've seen has been explicitly brought up to ensure that I was ok with it. But I guess that's not universal?)
I had a client once who worked for a company for a few years, then did not for a few years, and then did again for three decades. The company terminated this person. The company found out this person had had a side business for more than a decade in the same industry. My client had signed an IP assignment during the first tenure, which lapsed at termination, and then never signed a new one.
The company tried to take all of my client's IP. They failed for lack of execution.
(I did not represent this client on the IP/non-compete/employment stuff; I did NDAs/licensing for the side business. But I have first-hand knowledge of this.)
Just for clarity's sake:
Some kinds of contracts definitely do require signatures to be executed and others don't. If it's important to you, then make sure you know which kind of execution yours requires.
I have read cases where employment agreements are void for lack of signatures. But, I am not an employment lawyer, and every jurisdiction is potentially different.
More specific about what? I can try.
In any of these types of contracts that do not require writing, you can write your terms down on paper (or memorialize them in any way you agree upon; email, napkins, etc) and still verbally execute the agreement. The writing will then become evidence of the verbal agreement.
For any specific type of contract, you will want to consult a lawyer in your jurisdiction. There is just too much variability to account for.
If your question is, "If someone gives me this written contract, and I don't sign it, but I say, 'yes, I'll do this' -- can this contract be enforced against me even if I didn't mean it and didn't sign it?"
The answer to that could very well be: Yes, you're on the hook. So don't say yes unless you mean it.
Don't ever say yes just to get out of a situation. Say, "I need to think about this for a couple of days." And if they push you, then say you're really sorry but you can't agree without thinking about it.
Such arguments tend to hold weight in court.
That reminds me, I am going to add some of these points to "questions for my employment attorney" for next time I change jobs. It's not very expensive to purchase an hour of an attorney's time and they can answer a bunch of questions like these.
It seems ethically equal to a company using their bargaining position to advantage themselves and disadvantage their prospective employees.
I disagree that excuses unethical behavior on the part of the employees.
I'm being pointed here, but I feel that's a fair representation of what we're talking about.
Specifically for all but the most specific competitor-worded non-competes, the company knows exactly what it's doing: retaining employees through a cheaper method than compensation.
Second, in this particular situation there is an above-board alternative, which is to reject the terms in a clearly-communicated fashion. Were there literally only two alternatives which were "lie by omission" and "starve" then this conversation would be different. But I think in the real world, there are more alternatives available. If there are ways of achieving the same ends without deceit, then the use of deceit is unjustified.
Not that I'm using that as an argument to be an unethical person.
But I am saying I feel it's a justification to act in a more Rooseveltian realpolitik manner: treat someone ethically until they demonstrate a lack of ethics. And even then, strive to conduct oneself to a higher standard, but firstly protect yourself and your aims at all times.
Most unethical behavior seems advantageously predicated on others' ignoring / accepting it. To the contrary, confront it! And win!
To your second point, granted with a caveat. The "freedom to turn down a job" is a freedom many aren't afforded (and I daresay most don't have the benefit of affording at least once in their lives).
Saying "Yes, but we have better, more ethical alternatives" feels elitist and... inapplicable to the average working person.
So yes, while most people commenting here may have that option, there are a huge number that don't. (Hence why non-competes should be ruled unconstitutional)
You must be unfamiliar with the software development market. In which way do employers have massive market power which renders prospective employees vulnerable?
If anything, it seems like developers have the upper hand (perhaps with the exclusion of game developers).
Whatever the current market conditions are is irrelevant. They were different 10 years ago, they'll be different in another 10 years.
I was responding to the parent's claim that social engineering around signing non-compete clauses is unethical.
I consider trying to pressure an employee to sign such a clause unethical.
Maybe you feel differently.
but it's not essential
What were the circumstances in which they asked you to sign?
They want one year in damages for breaching the contract? They can pay for 1 year of salary.
I have run into trouble because of exactly this. There was a conflict in payment, I left. Their lawyer argued that even though the agreement was not signed, I had acted as if it had been (by not objecting and continuing the employment), so it was still valid.
I ended up settling, so losing money.
So I don't see how that could be construed to be 'part of the original offer'.
Especially if you asked (in writing) if such a clause existed and received a negative / no response before signing the contract.
* Could you initial every page but remove any pages you didn't like from a single contract?
* Could you insert your own subtly edited version of their non-compete that you signed?
[1] https://www.telegraph.co.uk/finance/personalfinance/borrowin...
"They signed the documents without looking. They said what usually their borrowers say in court: 'We have not read it',” said Mr Mikhalevich.
Oleg Tinkov, founder of the bank, tweeted: "Our lawyers think he is going to get not 24m, but really 4 years in prison for fraud. Now it's a matter of principle for @tcsbanktwitter."
[1]https://themoscowtimes.com/articles/man-who-outwitted-bank-e...
Depending on work relationship (e.g. contract), they may not be doing this anyway. But there are some things they need it for.
As others here have already suggested, I would agree that not signing the given contract and just going forward is not the right approach if you truly want to avoid the non-compete trap. Instead, amend the contract (or have a new contract drafted, as also mentioned earlier) and return it signed; it shows both your commitment to the work, and your attention to detail. The ball is then in their court. YOU now possess an amended, signed and dated copy of THEIR contract, returned to them along with an advisory of amendment.
You know, the things that nobody reads but generally sign away all your rights.
Send a letter via snail mail that clearly states that you disagree with their EULA but were unfortunately only made aware of the EULA after your purchase. Include a printed, revised EULA with your proposals for changes. Be reasonable in the changes you propose.
If they reply to you that they disagree with the changes, they can prohibit you from using the software or service, but then you're also entitled to a full refund, of course.
If they forget to reply, their EULA will not be enforceable.
Even if they haven't replied, the original contract is still sitting there clearly stating that a certain set of assumptions are in place if you use the software. I don't see any way to argue that a non-reply implies consent to new terms or abandonment of any terms.
Are... are you... this is the internet and are you... you are serious? Can I believe this? I want to believe this.
They are only valid if you are able to accept them before paying for the product.
In other words, just because someone puts something in front of you to sign doesn't mean you have to sign it, or even comment or push back on it. You can just ignore it.