Different noncompete document may hurt bid for job at new firm
Q. Last June, the biotech company I worked for negotiated a deal to be acquired by a competitor. In September, we were acquired, our plant was closed, and we were discharged. My company offered us two months' severance pay under the Worker Adjustment and Retraining Notification Act. Additional severance pay was offered if we signed a "release." As one of the terms of the release, discharged employees could not apply for or accept employment with the buying company, its affiliates, and its subsidiaries. Because the buying company is a major player in the biotech field, I chose to not sign the release. Recently, I applied for a position with the buying company. I was stunned to find the buying company rejected my application due to my past employment with the company it eventually acquired. I am wondering if my employment with the buying company can be restricted in such a way, especially since I never signed the release.
A. As with any competitive industry, in the biotech field companies typically rush to hire the top talent of their competitors. Intellectual property in biotech, however, reigns king. Companies will go to great lengths to protect the ideas that drive their research and development. As expected, restrictive covenants are common for employees in this industry. Although they must be narrowly tailored, noncompetition agreements in Massachusetts are enforceable.
In asking you to sign a noncompete at the end of your employment in exchange for additional severance, your former company may have been trying to hedge its bet in the event that the acquisition never came to fruition.
To better understand the specifics of your situation, I consulted David Conforto, of Conforto Law Group, a Boston firm concentrating in employment law and the representation of employees.
"For reasons unknown, the buying company appears to be abiding by the terms of a noncompete that, based on your understanding, simply does not exist," said Conforto. "While you chose not to sign the release, there may be another document out there that restricts your employment in a similar fashion. Employees typically sign a slew of documents at the start of employment, from code of conduct policies to tax forms to job offer letters, one of which may have included some noncompete language."
"Determine what exactly is out there," suggests Conforto. "Request your personnel record in writing and specifically ask that any noncompete agreements be included. Your former employer has five business days to respond by state law. If after receiving your personnel record you discover a noncompete, review the restrictive covenants, paying close attention to geographic and time restrictions. The less narrowly tailored, the less likely that it is enforceable. Consult with an attorney who can determine the validity of the noncompete."
Preventative measures pay dividends. In light of the restrictive covenants that are so much a part of your industry and others, engage an attorney to review the legal documents that your employer asks you to sign at the beginning and end of your employment. The language in such documents is drafted by company attorneys to serve the company's interests. Your career is your biggest asset. Your interests need to be protected as well.
A. When a person is promoted, often their first questions revolve around new duties and responsibilities, transitioning from the current role, and the timetable for these changes. Conversely, it sounds as if your initial inquiries were about your personnel file and salary. Your focus on the money and your record instead of the job and your responsibilities may have been off-putting to your manager.
At this point, I would schedule a conversation with your manager, where you can tell him how much you appreciate his confidence in you and thank him for selecting you for the promotion to supervisor. During this discussion, you will want to express your eagerness to do a good job, and perhaps ask for some suggestions on how to best make that happen. You may want to ask something like, "If it's a year from now, and I have done a great job, what goals will I have accomplished?"
As this discussion begins to focus on the work that needs to be done, and the timeframes or deadlines associated with these projects, you are in the perfect position to ask more about transitioning away from your old job and responsibilities. Ask about how that will happen and offer to support the training needs of anyone who will be replacing you prior to moving into your new role.
Asking these questions demonstrates that you have a professional interest in your new job and are willing to make the transition work smoothly for your manager. Once you have shown that you are committed to the new post and the company, you will be better positioned to ask about your personnel file and your salary.
A. The question of compensation is one of the most challenging issues for job seekers. They often don't understand why they are asked the question, and so have not prepared an appropriate answer. This sounds like your situation, but you did get interviews with both companies so you must have given a satisfactory answer. Now you can make it to the next step in the interview process. It is very appropriate for hiring managers to ask about salary expectations. Managers need to get a sense that both parties are in the same ballpark. The salary question is a method of screening, and can reveal interesting information about candidates. That isn't to say there won't be some negotiations that occur at the offer stage, but being way out of the range either high or low, will raise red flags.
You saw some interview techniques in their "afterthought" style of asking the question. Some hiring managers will wait until a person is at the door during an interview to ask this, or even as they walk them out the building entrance. It may seem like an afterthought, but it is a very calculated move. I also encourage you to listen carefully to the question asked for specific implications to see if your answer will change. Notice you were asked for your minimum requirements. Other questions might be specifically about salary expectations or salary history. A point to consider when responding to any salary question is that the company or manager has a salary range in mind for the position. You would like to get more information about the range to make sure you make it through the screening process, and to maximize your earning potential. While you were unhappy you mentioned a number, that was a better tactic than being unresponsive.
I can assure you that would not have worked. Your goal is to be responsive, and to begin the give and take of information sharing in interviewing. Next time you might try, "The most important issue to me in a new position is a good fit, a place where I can make a significant contribution. I am flexible about salary depending on the compensation package. What salary range did you have in mind?"
There are three important points to note in this kind of response.
The first is that you responded. In the preparation stages I often hear people say, "I just won't answer. I won't tell them until they tell me." The problem with this strategy is that interviewers will continue to ask this question until they have the information they want, or they are so aggravated with you that you will not be asked back to continue in the process.
Secondly, you have described yourself as flexible.
Lastly, you have separated out salary and compensation. Salary is one part of compensation, which might also include bonuses, healthcare benefits, 401(k) contributions, professional or club memberships, car allowance, etc.
If they do give you a range your response can be, "I don't see the salary as an issue, and I hope we can continue the process." If the salary is lower than expected, you can say, "The range is lower than I anticipated, but I would like to continue discussing the opportunity." If the interviewer will not share the range, consider offering, "My most recent compensation was in the mid XX's with a significant bonus and benefits package. How does that fit within your range?"
This will happen in almost all interviews you have, for any level position. Be prepared to discuss this professionally as you would any other aspect of your work.
Elaine Varelas is managing partner at Keystone Partners, a career management firm in Boston.
E-mail questions to jobdoc@globe.com or mail to Job Doc, Boston Globe, Box 55819, Boston, 02205-5819.
