How Should I Handle HR's Concerns About Working with Competitors While Moving for Family Reasons?

Respected HRs,

I am in a bit of trouble as my HR is saying that I shouldn't work with competitors. However, I strongly agree that I should not copy or use any of my current company's data, drawings, or any other information related to the company in any form. I am moving from this company due to major family issues which are known to management as well as my supervisor. I have also requested to be transferred to a location where I am suitable, but they have stated that it is not possible. In order to be relieved from my current position, they are asking me to provide a written request. The world is growing with competition, and I also joined from their competitor, but I have never revealed any of my previous company's data or information, of which they are very much aware.

Please advise me on how to handle this situation or suggest how to proceed.

Please review your appointment letter and its contents. Additionally, consider reading and understanding the information provided at https://www.citehr.com/343871-restri...ompetitor.html and similar threads where experts have shared their insights.

Thank you for the suggestion and for providing the link to learn about the law. After your comments, I reviewed my offer letter, which states that I should not join a competitor company for a certain period before taking responsibilities in another company, but it does not specify any duration. Upon reviewing the link, I would like to bring a few additional points to your attention and request your advice accordingly.

I have been with this company for only the past 6 months, and I am resigning due to serious family issues. I also requested a transfer to a location where my family is more comfortable, but unfortunately, they informed me that it is not possible.

During the past six months, I have not undergone any special training.

In the competitive business environment, everyone can be seen as a competitor to one another. However, I am exploring the possibility of transitioning to a different platform or application where my current company is not involved. Additionally, my next company offers a wide range of products with different technological options, which means I will not have the opportunity to utilize any of the technologies from my current company.

I want to ensure that I act within the boundaries of the law, but I also need to work with my skill set where I can apply it effectively.

I kindly request your feedback and suggestions on how I can be relieved from my current situation without facing any difficulties.

Regards,
Uttu

Dear Uttu, Don't worry and go ahead and join whichever company you want (even if it means that you are working on the same platform with the same technology, etc.). No terms and conditions in any of the documents that you signed for acceptance with the company will come in your way from accepting the new job, as long as those terms and conditions are legally vetted in any court of law or legislature to ensure that they are in sync with the basic ethos of our constitution.

Remember that there is something called the "Bonded Labour Abolition Act" in our country. Remember that no "Employment Agreement" between an employer and an employee which is signed and/or executed on the soil of this country is legally valid in any court of law of this country as long as it doesn't align well with the words and spirit of the above-mentioned law. If your existing employers have invested in you for training, etc., then they did it for the purpose of their own benefit and not for charity. Moreover, such skillsets once acquired cannot be expected to be wiped out as per somebody else's whims and wishes. Therefore, don't worry and go ahead with your employment change plans as decided. As long as your F&F is concerned, they will have to clear it off latest within 60 days from your last working day in the organization.

If they don't clear your F&F by then, then you must contact a good labor law expert advocate and start targeting the directors of the company in a court of law.

Best of luck and don't cower down to the pressure of your current employers, since they can't force you to get into bonded labor just because you have signed a piece of paper. In fact, it will be them who will be facing the heat if the case gets dragged into a court of law. There have been numerous examples in the past where employers have been fined by courts for making new joining candidates sign such letters and contracts, which are in direct contradiction with the letter and spirit of the above-mentioned law as well as the "Constitution of India."

Thanks and regards,

Abhay Mulik.

Thank you for your words and kind information. Could you please provide any examples where people faced problems similar to mine? Also, is it possible to share any documents related to the "Bonded Labour Abolition Act"? I don't want to face any problems in the future with my current employer.

My problems were repeatedly reported to my boss since March 2014. Now that I have decided to move, I don't have any written communication. My boss is now saying that we never discussed these issues.

I am waiting for information on the "Bonded Labour Abolition Act" if it is available.

Thanks & Regards,
uttu

Dear Uttuj, I am in agreement with Mr. Abhay. You need not worry about the threats, etc., given to you by your present employer. Unless it provides an avenue for a change of station, as per requirements, they cannot gag you from joining another who may or may not be their competitor. The restriction on sharing technical information pertaining to the products with competitors will apply as long as you serve the organization concerned.

If the current employer wants an undertaking from you that you will not share information pertaining to their product with another employer, this will have only academic application and nothing else.

If your F&F is held up, you can firstly write to them to clear, followed by a reminder. If nothing happens, please write an application to the Assistant Labour Commissioner concerned with copies of your communications sent by you to the last employer and request his intervention. If still nothing happens, please engage a labor law expert seeking his advice.

I am sure your problems will get settled.

Regards,
S.K. Johri

P.S. Do not bother about the Bonded Labour Abolition Act.

Thank you very much for your kind views on my issue. Firstly, I am trying to resolve it without falling into all these controversies, as I am a core technical guy and do not waste my time on such matters. I will also try to explain the labor laws to HR (I have downloaded them from the Labor Ministry Website as suggested by Mr. Abhay), and if necessary, I will consult a lawyer. Your views are also in line with the document.

May I request someone to provide information if such incidents have occurred?

Thanks & Regards,
uttuj

Non-Compete Agreement: Enforceability and Case Examples

I have in the past given some examples here in Cite HR of how a non-compete agreement is not enforceable for employees at the operating level and is restricted to those in strategic roles. You may search the thread for those details. Just to be brief, I will give you a few cases.

Mark Hurd, Global CEO of Hewlett Packard, joined Oracle. HP went to court to enforce the non-compete agreement, stating that he was privy to HP's strategy. The court dismissed HP's contention, stating that Mark's knowledge of certain strategies was restricted to the role he was handling. The business group he joined at Oracle had nothing to do with his role at HP, and no material loss could accrue to HP, making the non-compete agreement unenforceable.

In India, Vasant Nangia, who was the COO of Tanishq, the jewelry brand of Titan, resigned and started a jewelry company named Oyzterbay with his senior colleagues from Tanishq. Almost 75% of the strategic team left to join him. Titan filed a case against him and his team to enforce the non-compete agreement. The court dismissed the case, stating that the revenue model of Tanishq differed from that of Oyzterbay, and there would be no material loss to Tanishq since they sold products through exclusive showrooms, while Oyzterbay sold products online.

Apart from the above, the essence of most court judgments was that a person not involved in a strategic role would not be a threat even if they joined the competition and would not cause any material loss. I believe you are not working in a strategic role and do not have access to the overall strategy. I believe you are handling an operating role, and any information you may have on strategy would be limited to hearsay or a fraction of the total strategy relevant to your role. Hence, the non-compete agreement would not be enforceable.

I have provided many more examples in my posts. Please go through them.

Regards

Thank you for your information. Yes, I am not in a strategic role. I execute the work as per the guidelines from the boss. I am not involved in a single strategic group meeting of the company that makes all strategic decisions.

Appointment Letter Issue

The second point I would like to bring to your attention is that I have not signed the appointment letter due to a particular clause. I still have the original appointment letter with me, unsigned. However, my HR is now asking me to provide a statement on a piece of paper stating the same.

Thanks & Regards,
Uttuj

Do not sign it now. Also, in a friendly manner, inform your HR that not being in a strategic role will make the signing of the non-compete document not enforceable. Why don't you suggest to your HR to become a member of Cite HR so that he/she could gain some insight too!

Yes, but they are two different people. One wants to learn, and the other just follows "jugad" policies. I feel strongly that my HR falls into the second category. Anyhow, I got a big relief from our discussions and will also update you on the outcome of my learnings through this conversation in getting a smooth exit from my current employer.

Thanks & Regards,
uttuj

Congrats, Uttuj. Now, don't call yourself a pure technical person. You have learned a few HR tricks too . There is nothing called failure; it's learning. You also now know how people and bosses react after your resignation. Moreover, as you have mentioned, the period (number of days) between leaving and joining a competitor was not specified. If any questions are raised, just tell them:

"In the letter, the period was not mentioned, so I presumed it to be one week or one day. Please show me where you have mentioned the period in the letter given to me or signed by me." And you won the war of words... not court, no litigation is required in case of unclear information.

All the best!

Practically, where else would a person join if not a competitor? A simple example is that if I am a doctor resigning from an X hospital, I would definitely be joining another hospital. I will not join a CA firm, a lawyer, or retail.

Please do not worry if you are from the automobile/pharmacy industries (examples); you are expected to have a certain set of expertise in the same field only. Go ahead and apply. I'm sure if you have a valid reason and all documents and degrees in place, no one can stop you!

Please give a proper notice and leave in a positive way, ensuring you get all your experience and relieving letters.

Hope this helps! All the best for your new job!