Non-competition clauses in the employee agreements that many Dell professionals sign prohibit them from working either for a competitor, or in some competitive capacity, usually for a year after they leave Dell, either voluntarily or involuntarily. The agreement likely doesn’t include a specific list of the companies considered competitors.

Non-compete agreements are enforceable in most U.S. states, but not in California or India. In China, as well as in many developed countries, employers are required to pay at least partial compensation during the time that a former employee is restricted in where they can work.

Yes, and they can block employees from successfully changing jobs in a couple of ways without a court even finding that the employee has violated the non-compete.

Employers may decline to hire an applicant in order to avoid any risk of a non-compete lawsuit, even if the job isn’t in a competing group or division. Some job applications include check boxes that ask if the applicant has signed any non-compete.

Dell can ask a court to issue an injunction preventing the employee from working at their new job pending a decision in the case. Employers are often unwilling to defend new employees following the issuance of an injunction, or keep their position open while waiting for the case to be decided.

Nationally, there’s been a 60% increase in court decisions over non-competes since 2002 (WSJ). In one Massachusetts court (the Business Litigation Session), over the past five years employers were almost twice as likely to obtain preliminary injunctions enforcing non-competes than they were in the 10 years before that.

“Because EARN’s ‘pop-up unions,’ organized under the National Labor Relations Act, are designed to only engage the company on one issue and then dissolve, companies would rather negotiate and move on than deal with the creation of a full-fledged union in its midst…” (from The End of the Noncompete Clause in the Harvard Business School Alumni Bulletin).

Any group of two or more non-supervisory U.S. employees can trigger an election to certify a pop-up employee association to bargain on behalf of its members to eliminate their non-compete agreements, if at least 30 percent sign a membership petition, as long as the employees qualify as a “bargaining unit.” A qualified bargaining unit is determined by the National Labor Relations Board (NLRB) “on the basis of a community of interest of the employees involved.” For example, the NLRB determined that approximately 30 cosmetics counter workers at a single Macy’s store qualified as a “micro” bargaining unit. 14 Instacart employees working onsite at an Illinois grocery store held a successful representation election in 2020.

The NLRA‘s protection of employees’ right to organize and discuss work-related issues without retribution, including non-compete agreements, cover only non-supervisory employees. However, the definition of non-supervisory can be quite broad. Physicians, including department chairs, and tugboat captains have been determined by the NLRB to be non-supervisory.

All U.S. Dell professional employees outside of California who’ve signed non-compete agreements are encouraged to join EARN-TEE by signing their name below.

Your non-compete may be included in a section of your “Key Employee Agreement” (KEA), which are often signed by director-level employees and above. The non-compete section may have a heading such as “No-Competition,” or “Restriction on Servicing Company Customers.” Searching your KEA for the “California” employee non-compete exemption that refers to your non-compete is a quick way to find it.

While supervisors are welcome to join, they aren’t protected by the NLRA from adverse consequences should their membership in EARN-TEE become know to Dell, though EARN will keep their membership confidential. Supervisors may choose to participate in a limited work action, which may encourage Dell to also negotiate over their non-competes. However, Dell isn’t required to negotiate over supervisors’ non-competes, and supervisors’ participation in work actions isn’t protected.

The NLRB electronic signature guidelines (p. 5) require a phone number in order for an electronic signature to be valid.

The NRLB requires valid petition signatures from 30 percent of the eligible employees in a qualified bargaining unit in order to authorize a vote by all eligible employees in the unit on whether to authorize EARN-TEE to represent them for the purposes of collectively negotiating with Dell.

EARN follows the rules laid out in the NLRA, which require gathering signatures for a representation petition.

However, EARN seeks to negotiate solely over the issue of non-competes. It’s common for employee organizing efforts to be triggered by a single workplace issue. Often employers will seek to resolve that issue in order to avoid the certification of a union. If Dell eliminates non-competes for its employees in hopes of stalling EARN’s signature-gathering effort, the effort will have succeeded.

EARN doesn’t anticipate that members will consider taking any work actions during working hours. EARN-TEE members may jointly decide to consider work actions that limit work-related activities during specific weekends or evenings, for example agreeing not to respond to work-related communications over a weekend.

Because non-competes arguably don’t matter much to Dell. If they did, Dell wouldn’t hire extensively in California and India, where non-competes are unenforceable.

It’s unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of their rights.” Employers are prohibited from “threatening, interrogating, or spying on” employees, or offering them incentives not to associate by joining EARN. However, these protections under the NLRA don’t extend to supervisors.

If you experience or observe violations by Dell or its representatives, please gather any documentation you can and contact your Regional NLRB office, or Contact Us.