Non-Compete Practice: does this Industry need one really?

[idiot-savant]

I've been getting a lot of questions, stories and there is an ongoing discussion amongst industry friends if it is sound for call center companies to impose non-competes to their employees....

ClientLogic management imposes this heavily on their employees especially those from Dell CTS. The CL Country Manager who is gungho about this says that shameless migration is "going to hurt the industry. we will not prosper." Ambergris still has this on employment contracts but aren't strictly chasing people up on it. The clause is just there for them, i guess.

Is it reasonable to impose non-competes to a growing industry....my take? No. Why?

1. Imposing non-compete clauses on employment contracts restricts the fundamental right of people to work. (see article 11 of the Civil Code)

2. Non-competes tend to spawn a proliferation of depressed employees who want to get out but couldn't in fear of management backlash. thereby, only adding to a non-productive mindset within the company. depressed employees are not good for effectiveness and productivity.

3. Non-competes cost money to maintain. Imagine the legal fees for documetary stamps, attorney's fees and the associated headache. If companies have money to chase up after errant ex-employees for breach of non-compete practice, then they could've wisely used up the same money for better retention strategies in order for the employee to have stayed.

4. If the company feels that they have to be compensated for the technical training, process knowledge they give to their employees and they are concerned for a return on these investments, then i believe a Training Service Agreement and a Confidentiality clause in their contracts would suffice.

What do you think?

[BeePeeOOO]

If a non-compete clause is not overly restrictive - it is legal - for example, non-compete clause between SPRINT-PCS VENDORS and non-compete clause between Accenture and its sub-contractors.

IN DEMOCRATIC FIRST WORLD COUNTRIES, broad-based or overly restrictive non-compete clauses are void "ab-initio" since it is a violation of civil rights. I have written extensive posts on this forum with supporting legal links condemning non-compete clauses that ban people from the whole call center industry[overly restrictive and too broad].

MANTAKIN NIYO, GALING SA SPRINT-PCS LILIPAT SA FINANCIAL ACCOUNT O DIRECTORY ASSISTANCE SAKOP PA DAW NG NON-COMPETE CLAUSE!

[BeePeeOOO]

NON-COMPETE CLAUSE 101 - A PERSPECTIVE FROM A FIRST-WORLD COUNTRY - UNITED STATES REGULATIONS

http://www.tennesseeemploymentlawce...agreements.html

Non-Compete Agreements

In today's highly competitive marketplace, companies are increasingly relying on non-compete agreements or non-compete clauses to protect markets and trade secrets. A non-compete agreement is a contract between an employee and employer in which the employee agrees to abide by specific restrictions on competition if his employment terminates. Non-compete agreements usually include geographic and time restrictions, as well as agreements not to divulge trade secrets or lure customers away from the employer. Generally, a non-compete will prohibit the employee from setting up a competing business or from competing as an employee of another company within the time and geographic limitations included in the non-compete. For the most part, non-compete agreements are legal and binding so long as the agreement is not too broad in scope or oppressive. However, some, perhaps many, employers misinterpret the law in this area, and courts do not generally, and historically, like non-compete agreements.

If not faced with some act of gross and obvious misconduct of the departing employee, judges are generally reluctant to enforce these agreements. Listed below are some important things to consider when looking at your non-compete agreement, whether you are the employer or the employee.

Important Information:

Non-compete agreements are generally not favored by the courts because they are viewed as restraints on trade.

Courts look closely at the reasonableness of the agreement to determine if the agreement is enforceable.

In Tennessee, non-compete agreements or restrictive covenants are not always enforceable.

Tennessee courts look to the following factors to determine if non-compete agreements are enforceable:

Consideration given for the agreement.

Danger to the employer if there is no such agreement.

Economic hardship on the employee created by the covenant.

Public interest.

Scope of restrictions, including:

Geographic location covered.

Time period of restriction.

Job description.

Common examples of when you should look to see if your non-compete agreement is enforceable:

If you only worked for a short time for the company.

If your employer breached the contract with you. Examples include:

No overtime pay when it is deserved.

Not paying all commissions that are due.

Failure to pay a promised bonus.

If your employer directed you to engage in illegal conduct. Examples include:

Sales fraud.

Environmental violations.

Antitrust violations.

Tennessee courts will sometimes modify the agreement if they find it mildly unreasonable. This is called "blue penciling" an agreement.
Remedies and Damages:

If the agreement is wholly enforceable, the court will most likely issue an injunction which will stop the employee from engaging in the activity prohibited under the agreement.

If the courts find the agreement mildly unreasonable, they can modify the agreement to make the terms fair. Alternatively, the court may choose to enforce some but not all of the provisions.

If the court finds the agreement oppressive and it cannot be satisfactorily modified, the court will probably throw out the agreement entirely.

In addition to injunctive relief, the court might also award monetary damages to compensate for any business lost due to the unfair competition.

[focus_award]

sana magkaroon ng union ang mga call center agents para di naaapi sa mga bagay tulad nito.

hehe. yeah, problema sa management ang union but heck.....

[lazy_agent]

ei you know what hahahaha...


I came from Sprint's acct with a non-compete clause... I cant apply to these companies - Convergys, Sykes, People Support and Ambergris... although Convergys gave me some timeframe to go back to them like 3 months...

actually i called them first just to make sure that i can/cant apply to them...


well sa aking opinyon hehehe - its not the issue of non compete clause thingy nrin e kse i do have some friends who used to be my teammates and they are working right now in Convergys and Daksh who are actually a direct Competitor ng former company ko... I think depende nrin sa mga recruiters to e hehehehe...



for me i really do understand now kung bakit kailangang may non compete clause na nakakabit sa isang agent "LALO" na ang acct is a HUGE telecommunication acct...


kagaya nga ng aking nasabi hehehe depende nlng ito sa mga recruiters kse sometimes when they hear and see the company that u used to work with na may non compete clause "e they immediately consider that na di ka na pwedeng magapply sa kanila" which is so wrong...


i hope that some companies should give some nice education to their recruiters about non compete clause "thingy" hehehehe


although it sucks! to think that i have that clinching on my back pro to tell you honestly i am working right now sa isa sa mga companies that i mentioned hehehehe... its because i explained it to the recruiter who recruited me to the company and to the product itself....



hehehehe Godbless

[lazy_agent]

Just ask my crush BeePeeOOO hehehe she knows my situation before...

[techlogic]

a union is a good idea. ive been thinking about it. the thing is, in the event that a union is formed or even be formed, everyone in the call center industry must be member.

[legal-recruiter]

sana magkaroon ng union ang mga call center agents para di naaapi sa mga bagay tulad nito.

hehe. yeah, problema sa management ang union but heck.....

There are call center industries here in Manila (i know some but i'd rather not divulge such names of Call Center Companies) that they include a clause in their contracts that they are not allowed to created unions. Unions that they know would definitely go against some company policies. I dont think these call center companies are aware that they are not allowed to do that because they are on Philippine grounds. That even though they are US based companies but the fact of the matter is they have operations here in the Philippines then that means they have to abide to the laws under the Philippine Constitution.

But given these kinds of situations they dont give much attention to these issues given that the call center industry is the most in-demand industry in the country. :)

[phoenixforce]

union in call center is like waiting for a superhero.... but who knows .... good luck n lang s inyo peeps still in this industry.... kapit n lang kayo at lilipad rin ang mga career nyo......

[BeePeeOOO]

Dell also has non-compete clauses between its vendors - understandable since it is DIRECT COMPETITION. What really violates the law are non-compete clauses that bar the employee from the whole call center industry - since the industry is too broad and has accounts that DO NOT COMPETE WITH EACH OTHER.

As an example: A tech support agent being banned to work for a financial account in another company after fulfilling the minimum stay requirement of his former employer. THERE IS NO DIRECT COMPETITION.

Even final pay quit claims are illegal since any employee has the right to expose any illegal activity of his former employer -THAT IS A DOLE regulation.

MAG-ARAL SA BATAS - IT IS IN THE INTERNET.

[s0undwave]

a union is a good idea. ive been thinking about it. the thing is, in the event that a union is formed or even be formed, everyone in the call center industry must be member.

spare me - unions are NEVER good ideas when you get down to it. it may seem nice in a textbook Marxist kind of way but when you get past those romantic notions and you actually meet directly with the types of people who run unions in this country, then and only then will you understand what unions really mean.

...which of course is usually the end of the company.

[Milliardo]

spare me - unions are NEVER good ideas when you get down to it. it may seem nice in a textbook Marxist kind of way but when you get past those romantic notions and you actually meet directly with the types of people who run unions in this country, then and only then will you understand what unions really mean.

...which of course is usually the end of the company.

I agree--unions are never good for a company here. Say goodbye to your jobs if you have a union: they'll be asking for more and more until the company folds up. Ilan na bang mga kompanya ang napasara ng KMU dahil sa mga nonsensible demands nila?

[dragonrower]

well we dont have to be members ng KMU coz iba namana ang hawak na industry nila at sa salary range natin, we cannot be a member. dapat panibagong union.

in any case, i dont believe in unions really. having a bad experience in KMU, you never know that they're so violent. yes, they have assassins. they killed an accountant in FTI way back in early 90's, until now the case is pending since the officers of KMU are really really connected to high people in the goverment. now, nakalimutan na, so parang dismiss na rin yung case

[lolo inosentes]

up ko lang po...