Hi,
I've worked at a few different schools internationally and have seen - or heard colleagues talk about - non-competition clauses. For example, school A in country A inserts the clause in your contract so that you're not supposed to be able to work at school B in country A after your contract with school A expires (and in one example not for several years after!)
my questions are:
1) have any of you had this type of clause in your contract(s) before?
2) is it an actual, binding thing? or could it be negotiated with?
3) any thoughts on this type of point in contracts? i thought it was a bit strange myself.
thanks in advance!
v.
Non-competition clauses
Re: Non-competition clauses
Hey
A general principle of law is that a private person (including a business) cannot usurp the law of the land.
So, if the law allows ok, however, if not, they may just be trying to bluff.
To go through the hassle of enforcing this against an individual teacher would be far-fetched, not to mention the bad publicity this can potentially create for the litigious school.
A general principle of law is that a private person (including a business) cannot usurp the law of the land.
So, if the law allows ok, however, if not, they may just be trying to bluff.
To go through the hassle of enforcing this against an individual teacher would be far-fetched, not to mention the bad publicity this can potentially create for the litigious school.
Response
Its not really enforceable, when an IS inserts such a clause into a contract its more to scare you into staying or leaving at the conclusion of the contract. Theres only a very narrow range of scenarios where such a clause would be effective and then only in a very limited way.
First, any enforcement would have to be done in a court of competent jurisdiction. An IS cant just waive a contract and say you cant work anymore. They would have to file suite in civil court. Second, in the vast majority of regions you cant really give up your rights civilly. If you have a right to work, an IS isnt an enforcer who can keep you from doing that. Third, in the case of a contract there has to be some form of consideration and quid pro quo that is in the public interest. A court isnt going to enforce a non-compete clause against a person that leaves them destitute and unable to practice their profession. Either the contract has to have provide reasonable self support and maintenance or some ongoing economical relationship, or the limitations of the non-compete clause would have to be very restricted. For example you create a grade book and curriculum management software program and you sell it to the IBO, as part of the contract the IBO includes a non-compete clause, prohibiting you from selling another curriculum management and grade book software program for 5 years:
1) The contract is then structured such that the price the IBO pays you even if its an advance lump sum as X coin over Y years, such that what they pay you is intended to keep you eating and living for that period of time.
2) The restrictions are specific, they cant enforce terms that would leave you without a trade or profession, in this case as a software designer you can create other programs and do other projects.
3) The restriction is limited to sales, you could still work on another grade book curriculum management program, you just couldnt sell it, and likely you could even sell it if it didnt compete with the program you sold the IBO. You could still teach, or be in leadership involved in curriculum.
These all differ from the horror scenario that an IS owns you because of a non-compete clause. The court would likely toss the case. Their contract isnt a court order, and courts dont like turning professionals into destitute paupers.
Moving forward assuming the IS could bring a case they have further pragmatic issues:
1) The IS would have to show actual damages, that your leaving IS A and working at IS B actually resulted in a financial loss that is attributable to your change in employment. The burden would be on them to prove that A) There was a financial loss and B) quantify what that loss is. This is easy to claim and conceptualize but very difficult to prove to any standard. An IS might be able to show how their enrollment fell after you left, but they need to prove that the loss in enrollment was due to your absence and not some other factor. The IS would have to show that the enrollment at IS B that you went to increased and that the gain in enrollment is from IS A.
2) They cant bar you from employment, while a civil court can order specific performance (meaning that a . has to do something) this type of case would be monetary, and again they have to prove actual damages and those damages have to be actual damages not potential damages. For example Assume that you left IS A and went to IS B and the IS A actually shows that a number of students moved their enrollment from IS A to IS B because they wanted to follow their favorite IT. If its at the end of a term, or year or even month, based on whatever the contract is between the parent and the IS at most your liability is for that period of the contract. If you leave at the end of the year, then its most likely that any losses are potential damages not actual damages.
3) IS A would have to mitigate their damages and show exceptional quality. So assuming IS A shows that you poached some students and it happened mid term resulting in the loss of several students, IS A would have to show that your teaching is so exceptional and unique that your absence effected the quality of the service they provided, that another IT could not replace you. In addition IS A has to mitigate its losses, it lost students but then they have to show that they tried to replace those students and were unable to.
In the vast majority of cases its just a scare tactic, whats the scenario where there is some teeth. Your an IT and you actually poach some students, the parents testify, the IS has no waiting list and cant replace students, and no one wants to work at this IS so they cant replace the IT. Even then they cant keep you from working, at most they will get a monetary judgement and likely go after the employer at IS B.
First, any enforcement would have to be done in a court of competent jurisdiction. An IS cant just waive a contract and say you cant work anymore. They would have to file suite in civil court. Second, in the vast majority of regions you cant really give up your rights civilly. If you have a right to work, an IS isnt an enforcer who can keep you from doing that. Third, in the case of a contract there has to be some form of consideration and quid pro quo that is in the public interest. A court isnt going to enforce a non-compete clause against a person that leaves them destitute and unable to practice their profession. Either the contract has to have provide reasonable self support and maintenance or some ongoing economical relationship, or the limitations of the non-compete clause would have to be very restricted. For example you create a grade book and curriculum management software program and you sell it to the IBO, as part of the contract the IBO includes a non-compete clause, prohibiting you from selling another curriculum management and grade book software program for 5 years:
1) The contract is then structured such that the price the IBO pays you even if its an advance lump sum as X coin over Y years, such that what they pay you is intended to keep you eating and living for that period of time.
2) The restrictions are specific, they cant enforce terms that would leave you without a trade or profession, in this case as a software designer you can create other programs and do other projects.
3) The restriction is limited to sales, you could still work on another grade book curriculum management program, you just couldnt sell it, and likely you could even sell it if it didnt compete with the program you sold the IBO. You could still teach, or be in leadership involved in curriculum.
These all differ from the horror scenario that an IS owns you because of a non-compete clause. The court would likely toss the case. Their contract isnt a court order, and courts dont like turning professionals into destitute paupers.
Moving forward assuming the IS could bring a case they have further pragmatic issues:
1) The IS would have to show actual damages, that your leaving IS A and working at IS B actually resulted in a financial loss that is attributable to your change in employment. The burden would be on them to prove that A) There was a financial loss and B) quantify what that loss is. This is easy to claim and conceptualize but very difficult to prove to any standard. An IS might be able to show how their enrollment fell after you left, but they need to prove that the loss in enrollment was due to your absence and not some other factor. The IS would have to show that the enrollment at IS B that you went to increased and that the gain in enrollment is from IS A.
2) They cant bar you from employment, while a civil court can order specific performance (meaning that a . has to do something) this type of case would be monetary, and again they have to prove actual damages and those damages have to be actual damages not potential damages. For example Assume that you left IS A and went to IS B and the IS A actually shows that a number of students moved their enrollment from IS A to IS B because they wanted to follow their favorite IT. If its at the end of a term, or year or even month, based on whatever the contract is between the parent and the IS at most your liability is for that period of the contract. If you leave at the end of the year, then its most likely that any losses are potential damages not actual damages.
3) IS A would have to mitigate their damages and show exceptional quality. So assuming IS A shows that you poached some students and it happened mid term resulting in the loss of several students, IS A would have to show that your teaching is so exceptional and unique that your absence effected the quality of the service they provided, that another IT could not replace you. In addition IS A has to mitigate its losses, it lost students but then they have to show that they tried to replace those students and were unable to.
In the vast majority of cases its just a scare tactic, whats the scenario where there is some teeth. Your an IT and you actually poach some students, the parents testify, the IS has no waiting list and cant replace students, and no one wants to work at this IS so they cant replace the IT. Even then they cant keep you from working, at most they will get a monetary judgement and likely go after the employer at IS B.
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chilagringa
- Posts: 335
- Joined: Sun Apr 24, 2011 7:19 pm
Re: Non-competition clauses
Whoa! That would be a total red flag for me. Sounds like something a third-tier school would do in a city where teachers have better options. A good school would just do what it can to actually make teachers want to stay.
Comment
@chilagringa
You mostly see it in regions like China where an IT gets hired at a rural IS, finds out its nothing more than a local independent DS and just waits until they can get to one of the metropolitan cities or regions.
You mostly see it in regions like China where an IT gets hired at a rural IS, finds out its nothing more than a local independent DS and just waits until they can get to one of the metropolitan cities or regions.