Being asked to sign a "termination certificate" 6 months after resigning

Question

The company is registered in Delaware, US. But I worked for the branch in Europe.

I just got an email that I have to sign a "Termination Certificate" 6 months after quitting.

It states:

I also agree that for twelve (12) months from this date, I will comply with the non-competition and non-solicitation provisions of the At-Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement.

Also that I have to state where I am going to work, is this normal?

After leaving the Company’s employment, I will be employed by ________ in the position of ________.

Do I have to sign it?

Answer 1

The Employee View

No, you do not.

Companies often want you to sign things at (or, if poorly organized, after) termination (noncompetes, IP agreements, NDAs, promises not to sue them...). These agreements are ubiquitous especially in tech jobs in the US. You are asked to sign them at employment, which you have to do or not get employed. Then you are asked to sign them at termination (or in your case, way after termination), but you don't have to, because in this case they are not offering you anything meaningful to do so.

Usually if they are serious about having you sign it, there will be a severance or other payment associated with the agreement that lets you justify the possible problems from signing by compensating you with real money in hand. This "consideration" (legal term) is also an important part of whether some aspects of contracts like that (especially noncompetes) are enforceable in some jurisdictions (here's a link to the rich set of rules around noncompetes across some of Europe). But if they are not offering anything, and it's after the fact like this, just ignore their attempt to contact you.

It does not matter if “maybe it’s legally unenforceable.” You still don’t sign it because there’s no reason to enter into a legal agreement for no reward. And even if there is a noncompete, it’s sure not your job to tell them where you’re working now. Let them figure it out themselves if they’re trolling to see if they should take action against you. You're not working for them any more, what are they going to do, fire you?

The last place I left, I gave my notice and they said on my last day "oh don't forget to sign your departure paperwork." I said "Sure, let me look it over." As is customary in the US for tech jobs, it had all this stuff in it (IP warnings, noncompete, nonsolicitation, "you're not going to sue us"). But there was no consideration involved (I didn't get anything from signing it), and I am pretty uninterested in working for that place ever again. So I didn't sign it or send it in. They didn't even bother to follow up about it. (It was only restating the existing IP and NDA and noncompete stuff I'd already signed.) If anyone had contacted me about it, I'd politely say "I'm sorry, I don't enter into legal agreements for no consideration. Thanks, have a good day!"

A previous place I left, they gave me $1k to sign a termination agreement, so I signed it, I mean, I didn't plan to steal their IP or sue them and that's a thousand bucks in hand so why not.

The Management View

Full disclosure - I’m a manager who hands this kind of thing out myself to terminated employees as part of my job.

This is usually containing terms they’ve agreed to already, as a reminder and “acknowledging it again” so they can’t claim in court “Oh I don’t know, I just signed some random things when I was hired, I didn’t know I couldn’t take my code and their customer data with me when I left”. Just giving it to them again whether they sign it or not is material legally because they can't claim they weren't told. Sometimes it's also a "you're not gonna sue us, arbitration, etc etc." agreement. Companies do have to protect themselves, and as even some questions on this Stack indicate people feel free to lie, take code, take sensitive information, and so on (and the vast majority obviously don't read the papers they sign or their employee handbooks or whatever). There's no 100% way to prevent it, but that's where legal remedies come in.

Ramifications Of Not Signing

I just had someone sign one last week, but I paid them two weeks severance in the bargain, so they willingly signed. Otherwise, I’d ask them to sign it but have no real recourse if they didn’t. Legally I can’t withhold PTO payout, or any other kind of coverage or thing they're due if they don't sign. I can’t smack talk someone on a reference check for fear of legal problems too.

If I feel strongly about it (especially if they were rude or unprofessional during the interaction) I can not actively help and recommend them and not consider them for re-hire, which is definitely a downside for them unless they are being fired for severe cause, as I try to help out people even if they didn’t work out on my team, and I’m active in my city’s tech community. If you quit or were laid off or were fired from my team on good terms, I will have your back in the future as long as you behave professionally.

If you tell me "I'm not going to sign that without consideration" - I personally sympathize, and I will try to get something for you, which will vary by how much my organization really cares. I wouldn't try "$1!" or whatever, that's a transparent legal dodge not suitable for real professionals. But it'll probably be modest, like my examples of $1k or a couple weeks pay, if you're not an executive or something. In reality this entire exchange is usually just a polite formality and a small sweetener so you're not just "signing because you loved me as a boss." If you try to negotiate it up from there ("two years!!!") I'll decline, and also consider you to have poor judgement as a professional (see above paragraph about not recommending you to others). I may also keep an eye on you more in the future to see if you do seem to be violating your employment agreement.

Ramifications Of Actually Doing The Bad Things The Document Is Talking About

Keep in mind most places aren't trying to arbitrarily screw you, they're trying to preserve their legitimate business interest. If you're working for a company working specifically on thing X, and you go to another one working on nearly identical thing X, you are very likely to be leaking specific information about product internals or customer relationships or whatever your deal is. That's why IP agreements and NDAs and noncompetes exist. And whether you signed one going out the door or not, you probably signed one coming in.

I would only take action if I felt there was a compelling business threat. But if you leave my, say, startup doing educational scheduling and go to our competitor who's the one other startup doing educational scheduling, and they get the benefit of our confidential internal tech and relationships and whatnot, I will drown you in lawyers. And to be blunt, even if if the contract is eventually held to not be enforceable, you're the one who's going to be spending a lot of your personal money on lawyers you'll never get back. So don't do it.

Answer 2

You no longer work there, so they can't make you do anything you weren't already contractually obligated to do. As pointed out in the comments, you can't be contractually obligated to sign another contract, so you're under no obligation to sign the new non-compete clause. You're also not obligated to inform them where you're working now (unless you have a prior contractual obligation to do so).

I'd actually be really cautious about signing this. The new agreement clearly states that it applies for 12 months from when you sign it, not 12 months from when you quit, so your non-compete clause will effectively hold for a year and a half in total.

That may actually be why they waited six months. Check what your original non-compete clause says - they might be trying to trick you into extending it. It wouldn't surprise me if the original one only holds for six months from when you quit.

Whether intentional or not, though, the fact that the non-compete clause holds for 12 months from the date of signing means that there's a good chance that you'd be extending the duration of original non-compete clause.

Answer 3

You don’t have to sign anything. Since there is no upside to you for signing, and possible downsides, I very, very strongly recommend that you don’t sign anything.

If the letter said something like “in return for receiving £10,000 severance pay etc.” then you would think about it.

And that is all.

Answer 4

First off, delete that crap right out of your email box, possibly marking it as spam, so next time they try to send you something you'll have plausible deniability... you really did not see their crap email in your inbox.

Second (and with the proviso that I am not a lawyer and can't make such promises): Europe isn't anything like the US in terms of labor laws and employer-employee relationships, in general. (Thank God!). Most European courts will throw any contract clause like the clauses you've described into the trash upon seeing it. What this clause is implying is that, with absolutely no remuneration from the previous employer, to compensate their demands, they want to bar you the ability to earn a living in an entire sector of the market, more so, the sector you're now most experienced in!

Doesn't make sense, right? Not only are you no longer their employee, but to stop you from using your expertise to make a livelihood?! Well, as I said, no promises, but you're probably safe just ignoring them altogether.

That kind of (non-legal) BS should happen on "bye day", a week later at most.
If their HR is disorganized, that's not your problem!

Answer 5

Tell them that you'll sign it for three times (3x) your previous annual compensation, in a lump-sum payment.

EDIT: Based on Dmitry's comment, 3x is bit of a slap in the face (but imnsho, the request to sign is a slap in your face). Anyway, you could ask to be compensated for the time that you are under contract. For example, if the non-compete is for 12 months, respectfully ask for 12 months salary, six, or even three. It depends on the relationship with this employer.

Regardless of the amount, politely requesting compensation is a professional way of asserting yourself.

Typically an employee gets some form of severance payment for signing this stuff. Two weeks pay for every year at the company, possibly plus bonus.

Answer 6

From the verbal construction, it seems someone forgot to give/send that form to you before you left their service. As others say, it is no longer your problem. Furthermore, as a rule, never ever sign with corporate backdated documents. Or documents without a date (they will probably just add one later on).

Even if you signed an NDA, and especially if you did not sign one, I would simply ignore the email. The relationship is over, and this email may be tantamount of them harassing you. Whatever real or imaginary power they though they had over you is over. And remember, HR is not your friend.

Corporate tries this bullshit all the time. Once in a project, someone forgot to ask me rights to some part of the project (which they did not had, and most importantly did not pay for, it was my intellectual property to begin with), and a few months down the line (a year maybe?) a lawyer just sent me an email...please send us xxxx. In my last job, they also asked me for an exit interview, camouflaged as came here sign your yearly job evaluation documents after I left. Though luck. ;-P

I just ignored the email on both cases, and never heard anything more about them. They just try if the fish takes the bait. Do not fall for it, you have absolutely nothing to gain from answering those kind of messages.

Answer 7

There are lots of good answers here,

I will just add a little bit of my mind

Any contract have to have a consideration for both sides to be legally binding document.

If you sign these contracts and they are not outline any benefit for you - legally they are contestable and may not be binding. You may want to consult a lawyer about that.

As for suggestion: If you are ok with signing the contracts, it becomes a bargaining issue for what your former employer is willing to give you for signing them and what would you accept for it

Answer 8

I think the other answers are getting pretty out of hand, so I'm going to avoid assuming that your previous employer was evil.

Why did it take 6 months?

Probably the usual, slow, stupid business bureaucracy, worsened by the fact that you're in Europe. I've had companies take a couple months to get my paperwork done, and that was in the same country.

It's also possible that they delayed so that you would have a reasonable chance at finding a job before they sent the letter. (Just a possibility, I'd still bet on a slow HR department!)

Do I have to sign it?

Not really. I think this is mostly just meant to be a reminder that you (as you stated in the comments) already have signed a non-compete clause. They are checking to see that you are protecting that agreement.

If you don't sign it, they will possibly try to find out your current employment through other means. It will be a pain in the butt for them.

You can save them the time if you have a good relationship with them.
Just do one of the following:

• Fix the date (they probably, innocently messed it up/were late) and sign it.
• Have them fix the date for you, like you said you will do in your comment!
• Email them with something like "I already signed a non-compete contract. For your peace of mind, I'm currently working at..." (Credit: @Andrew Leach's comment)

You lose nothing, while maintaining a professional appearance.

Answer 9

Before rejecting it, make sure that none of your essential termination benefits are contingent upon the agreement. If they are...

I took an "incentivised" exit which included considerable severance pay, some health benefits for a year, and an outplacement service, but to get those incentives I had to agree not to be part of any class-action suit against the company and to agree to binding arbitration rather than bringing suit myself if I had any issues. (Note that I did not give up the ability to provide evidence for a class action, only that I would neither help fund it nor received any reward if it succeeded.)

For me that was a reasonable agreement; they were giving me enough to pay for accepting those specific terms. For someone else it might not be, for either financial reasons or on principle.

This is a contract. Make darned sure you understand it in detail, then decide whether to agree. If you have any doubt, run it past a lawyer.