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If the employer wants the NDA to be part of the agreement, they should include it in the conditions of the employment contract.

If they offer me a separate contract to sign for their non-disclosure terms and I agree neither verbally nor in ink, I think it's a stretch to call it a misrepresentation of my position. Given that this type of contract usually offers absolutely nothing in exchange, it would be more reasonable to assume that I don't agree, if I don't sign it or express agreement otherwise.

Also IANAL, but at the very least I don't think that this is unethical.

In every case I've heard of where someone was pressed for misrepresentation, it was for actively misleading the other party.

Verbally agreeing to the NDA then not signing might count. Signing a fake name would obviously count. Editing a digital contract before signing might count, and not highlighting the edits in a "track changes" negotiation would probably count. If you returned the papers and said "these are all set" or something, I guess you might be at risk.

But just... not signing a thing? If someone puts it in front of you without negotiating or asking for consent, then accepts it back unsigned? I've never heard of a lawsuit arguing anything even close to "I handed him a paper, so he should have spoken up to tell me he wasn't signing it", and I can't imagine it'd go anywhere.

(On which note, every NDA I've seen has been explicitly brought up to ensure that I was ok with it. But I guess that's not universal?)

Oh no this is not true - if they can't find the signed paper work it is Absolutely on them. I've been square in this situation before - the company's legal "person" is absolutely in charge and responsible for collecting whatever signatures they want and which ones are optional and required. I absolutely disagree with this post.

I would also generally agree with this.

I had a client once who worked for a company for a few years, then did not for a few years, and then did again for three decades. The company terminated this person. The company found out this person had had a side business for more than a decade in the same industry. My client had signed an IP assignment during the first tenure, which lapsed at termination, and then never signed a new one.

The company tried to take all of my client's IP. They failed for lack of execution.

(I did not represent this client on the IP/non-compete/employment stuff; I did NDAs/licensing for the side business. But I have first-hand knowledge of this.)

(IAAL)

Just for clarity's sake:

Some kinds of contracts definitely do require signatures to be executed and others don't. If it's important to you, then make sure you know which kind of execution yours requires.

I have read cases where employment agreements are void for lack of signatures. But, I am not an employment lawyer, and every jurisdiction is potentially different.

Could you be more specific? I am curious. Did not realize contracts could be implicitly signed.

Implicitly signed? Like verbal assent? Yes, some kinds of contracts do only require verbal assent of the parties in order to be executed.

More specific about what? I can try.

Like what scenarios would a signature not be required, it is my understanding verbal contracts are enforceable. But can you give verbal assent to a written contract?

In absolute numbers, there are probably more contracts executed every day that must be in writing, but there are probably more types of contracts that simply do not require writing.

In any of these types of contracts that do not require writing, you can write your terms down on paper (or memorialize them in any way you agree upon; email, napkins, etc) and still verbally execute the agreement. The writing will then become evidence of the verbal agreement.

For any specific type of contract, you will want to consult a lawyer in your jurisdiction. There is just too much variability to account for.

If your question is, "If someone gives me this written contract, and I don't sign it, but I say, 'yes, I'll do this' -- can this contract be enforced against me even if I didn't mean it and didn't sign it?"

The answer to that could very well be: Yes, you're on the hook. So don't say yes unless you mean it.

Don't ever say yes just to get out of a situation. Say, "I need to think about this for a couple of days." And if they push you, then say you're really sorry but you can't agree without thinking about it.

When you get a job offer and do not have a current job you are automatically signing everything under duress. You don't get to eat unless you sign that, therefore you signed it.

Such arguments tend to hold weight in court.

I'd love to see just one case where someone flew that line past a judge.

> (IANAL)

That reminds me, I am going to add some of these points to "questions for my employment attorney" for next time I change jobs. It's not very expensive to purchase an hour of an attorney's time and they can answer a bunch of questions like these.

Unethical?

It seems ethically equal to a company using their bargaining position to advantage themselves and disadvantage their prospective employees.

> It seems ethically equal to a company using their bargaining position to advantage themselves and disadvantage their prospective employees.

You must be unfamiliar with the software development market. In which way do employers have massive market power which renders prospective employees vulnerable?

If anything, it seems like developers have the upper hand (perhaps with the exclusion of game developers).

I am very familiar with the software development market wherein both of my job changes thus far have been multi-year searches. Please do not assume that because it is easy to walk out the door into another job in a select few markets an with a select few skill sets that it is this easy for everyone writing software for a living.

Please don't make assumptions.

Whatever the current market conditions are is irrelevant. They were different 10 years ago, they'll be different in another 10 years.

I was responding to the parent's claim that social engineering around signing non-compete clauses is unethical.

I consider trying to pressure an employee to sign such a clause unethical.

Maybe you feel differently.

Yes, employers getting people to sign away everything they do after their employment is definitely a sign of them getting the shorter end of the stick...

Without a job, you don't eat. That alone is massive market power.

I agree that many companies behave unethically during negotiations with their employees.

I disagree that excuses unethical behavior on the part of the employees.

So you feel it's just for employees to hold themselves to higher ethical standards than their employer? To their own financial detriment?

I'm being pointed here, but I feel that's a fair representation of what we're talking about.

Specifically for all but the most specific competitor-worded non-competes, the company knows exactly what it's doing: retaining employees through a cheaper method than compensation.

First, I think the ethical standards one holds oneself to should be independent of who you're interacting with. Lying to a saint is the same as lying to a sinner. (I think lying is justifiable in many cases, but "lying to a bad person" is not a blanket justification.) If for no other reason, it creates a race-to-the-bottom for acceptable behavior.

Second, in this particular situation there is an above-board alternative, which is to reject the terms in a clearly-communicated fashion. Were there literally only two alternatives which were "lie by omission" and "starve" then this conversation would be different. But I think in the real world, there are more alternatives available. If there are ways of achieving the same ends without deceit, then the use of deceit is unjustified.

I used to think more in the mode of your "First" perspective. Yet the more of the world I see, the more I come to believe that in a majority of important life situations (in the US at least) acting in an unethical manner is a strictly winning strategy (from a game theory perspective, in that it trumps all possible other strategies).

Not that I'm using that as an argument to be an unethical person.

But I am saying I feel it's a justification to act in a more Rooseveltian realpolitik manner: treat someone ethically until they demonstrate a lack of ethics. And even then, strive to conduct oneself to a higher standard, but firstly protect yourself and your aims at all times.

Most unethical behavior seems advantageously predicated on others' ignoring / accepting it. To the contrary, confront it! And win!

To your second point, granted with a caveat. The "freedom to turn down a job" is a freedom many aren't afforded (and I daresay most don't have the benefit of affording at least once in their lives).

Saying "Yes, but we have better, more ethical alternatives" feels elitist and... inapplicable to the average working person.

So yes, while most people commenting here may have that option, there are a huge number that don't. (Hence why non-competes should be ruled unconstitutional)

Specifically, what do you find unethical about it?

I fail to see why not signing an agreement you disagree with is unethical.

Disagreeing with terms is not unethical. It's the "pocketing." An explicit rejection of terms is perfectly reasonable. But I think it's deceit to try and hide from the other party that you did not agree to all the terms that were offered.

Is there no baseline burden of due diligence that would come into play here? What if you didn't sign any of the packet and just showed up and started working. Surely you can't be held liable for the employer doing absolutely no follow-through?

  but it's not essential

Some contracts are unenforceable if not in writing.

https://en.wikipedia.org/wiki/Statute_of_frauds