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Holiday Season Non-Competition Agreements

On Behalf of | Dec 11, 2013 | Employment Law

With the end of the year approaching, employees may find themselves socializing with co-workers at holiday gatherings, receiving year-end bonuses, and perhaps looking for a job change. Below are some considerations for each of the above.

New Hampshire is an employment-at-will state which means that employers may fire an employee with or without cause and notice.   While there are certain exceptions to that rule, misconduct by an employee in a social gathering off the clock can still result in the employee being fired. For example, if a worker is drunk at a social gathering with fellow workers, even if it is not a company-sponsored gathering, and gets into a physical or verbal confrontation with a co-worker or shows amorous intentions to a co-worker, at a minimum, he will have diminished his fellow workers’ opinion of him or could find himself out of a job.

If an employee is disappointed with the holiday bonus he receives and expresses to others his displeasure, while that could under certain circumstances be protected speech under federal law (National Labor Relations Act), many of us would not like to be fired only to be possibly vindicated later. It is prudent for an employee who is dissatisfied with the bonus to first consider the potential consequences of complaining to fellow workers. A more productive alternative could be to consider getting another job that pays what the employee believes he is worth. Employers should speak with their attorney before disciplining or firing an employee for talking about his compensation with others.

If an employee considers switching jobs at the end of the year, or is fired or laid off, he should consider any restrictive agreements he may have signed with his current employer that might limit his ability to find another job in his area of expertise. Employers and employees should also keep in mind that under New Hampshire statutory law, RSA 275:70, any non-compete or non-piracy agreement that is entered into on or after July 14, 2012 must be provided to the employee prior to or concurrent with making an offer of employment or when changing the employee’s job classification or else it is void. Informing the job candidate in an offer letter that he will later receive a non-compete agreement to sign is not good enough; a copy must be provided prior to or concurrent with the job offer.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].