Hello Kamal Prasoon Sinha & others,
Looks like the Comm gap between what I 'meant to convey' & what 'was perceived to be conveyed' in my last Posting was HUGE.
When I mentioned the various aspects of 'how things can be argued legally', what I was trying to convey was the various ways Employers can handle this issue--IF it goes legal.
However, let me be clear on one thing: I WASN'T primarily focusing on the legal aspects--NOT because there are more qualified members in this Forum, BUT because I AM NOT qualified.
I was focusing on the NEXT/SUBSEQUENT step altogether. Let me explain.
All of us are, by & large, unanimous that this sort of Restriction to join a Competitor is ILLEGAL [maybe unethical too]. But what I was trying to point out was: how will all this exercise help the person involved NOW--who is waiting for a way to handle this issue since, he/she has to make a decision reg a job-in-hand?
Now, in general, when a candidate attends the Interview & is selected, he/she will be presented with this document to sign BEFORE joining.
How do you think he/she can/should respond/react? If he/she takes all the Court Verdicts/Rulings/Judgments & shows it to the HR person, what is the response likely to emanate: Will the HR exec say: "Oh...we didn't know that what we were doing was illegal. Fine....forget this & you can join tomorrow?" DEFINITELY NOT. A more likely answer would be: 'Our legal dept has told us it's legal & they are there to take care of such things. If you want this job, you need to sign this. If not........'--in the best-case-scenario.
By this exercise thru this thread, all I can see is BUILDING AN AWARENESS--about this issue. NOT THAT THIS IS WRONG OR UNNECESSARY--DEFINITELY NOT. But at the same time, Nothing else--even though the projected motive seems to be to resolve the issue [pl correct me if I am wrong].
An analogy would be this--but before taking it up, let me be very clear that EXCEPT FOR THE FUNDAMENTAL ASPECT, nothing else is common between the issue under discussion & the analogy.....the scale, length, breadth, depth, etc between the two are worlds apart.
Despite knowing well where the fault lies for all the corruption we see around us, why did Anna Hazare 'engage' the Government? He & others in his team knew very well that howsoever the LEVEL OF AWARENESS among the people of this country about corruption, it's FINALLY the GoI which has to take the Final call/stand IF CORRUPTION has to be reduced, if not altogether eliminated--BECAUSE IT CONTROLS THE LEVERS OF IMPLEMENTATION/PRACTICE.
Coming back to our issue, instead of trying to prove that this practice is WRONG [where none may be needed, after having so many Court Rulings] to the individuals/candidates who FACE THE BRUNT OF THIS PRACTICE, MAYBE it would be BETTER TO FOCUS ON THE HR Managers of such Companies--who actually lay-out the policies & finally implement such practices? Since until there's some Law forbidding such practices, I can't see any other way out [not that laws can prevent such occurances.. but that's beside the point].
As long as Companies don't stop from practicing such measures, all we will keep seeing are more Court Rulings: THAT THIS IS ILLEGAL.
There's another aspect to the whole issue--which I mentioned earlier: '........argue in the court that THOSE RULINGS DON'T APPLY TO THIS CASE' for which Kamal Prasoon Sinha said: how can that happen when the SC rulings are there?
I am not a legal person, but I can definitely tell this much: if the lawyer can manage, with some level of smart arguments, to get the 'matter' [not sure if this is the right 'legal' word] posted & not dismissed at the outset, then the case can go on & on and the individual/complainant had it--in terms of timeframe, energy, etc. I know this can happen SINCE I HAVE SEEN IT HAPPEN.
Maybe the court will finally give a Ruling that the Company is wrong--but when?. AND who will pay for the time [maybe years], effort, money [even if the case is 'with costs']? Knowing our legal process, is it worth for the individual to first sign such a Agreement WITH THE INTENT to jump later? I know what it entails, again, since I HAVE SEEN IT HAPPEN. For the legal professionals, that's THEIR PROFESSION but for the individual, IT'S NOT--that's the basic & the whole difference.
That's what I meant when I said: 'pl sign such a document ONLY IF YOU INTEND TO HONOR IT. Else, look for another job where this won't be an issue'. By saying this, my intent was to be 'practical & realistic' rather than any other way--mind you, ethics may be involved, but I didn't even consider that aspect.
I hope I haven't created more confusion :-)
Rgds,
TS