Dell EMC professional employees:

Would you like to get rid of the one-year non-compete agreement that can prevent you from taking a new job, which your co-workers in California or India are free to take?

If Massachusetts adopted a California-like ban on non-competes, wages for the average Massachusetts technical professional would increase by 7% according to the latest research.

Add your signature to our petition to join EARN-TEE now, or read our FAQ and Press coverage.

EARN-TEE FAQ

 

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What is a non-compete?

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

Non-compete agreements are enforceable in Massachusetts and most other 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.

Can current Dell EMC employees be required to sign a new or revised noncompete?

You should check with an employment attorney in your state, but in many states, including Texas, courts will invalidate a noncompete unless additional consideration is provided to the employee in exchange for signing. If the new noncompete states that it’s governed by Texas law, additional consideration is likely required in exchange for signing.

Are non-competes really enforceable?

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 EMC 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.

Paul Dacier, EMC’s former General Counsel and an outspoken opponent of meaningful noncompete reform, was chosen by Governor Baker’s administration to chair the state’s Judicial Nominating Committee, which nominates new judges who could hear future non-compete cases in Massachusetts.

Who can join EARN-TEE?

All U.S. Dell EMC 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 EMC, though EARN will keep their membership confidential. Supervisors may choose to participate in a limited work action, which may encourage EMC to also negotiate over their non-competes. However, EMC isn’t required to negotiate over supervisors’ non-competes, and supervisors’ participation in work actions isn’t protected.

Why are my signature and phone number needed?

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 EMC.

What does EARN have in common with a union?

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 EMC 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.

How could work actions limited to evenings or weekends be effective?

Because non-competes arguably don’t matter much to Dell EMC. If they did, EMC wouldn’t have posted two thirds of the number of jobs in California and India, where non-competes are unenforceable, as in Massachusetts (3/25/16).

Can Dell EMC take or threaten adverse actions against me for discussing EARN with my colleagues at work?

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 EMC or its representatives, please gather any documentation you can and contact the NLRB Boston office at (617) 565-6700, or Contact Us.

Press coverage and what others are saying about EARN

 

Why EMC Employees Are Forming a ‘Pop-Up’ Union to Take Down NoncompetesBostInno

​To Compete Better, States Are Trying to Curb Noncompete PactsNew York Times

Eliminating Noncompetes One Employer at a Time Through Single-Issue Labor Organizing CampaignsOnLabor

Non-compete clauses prompt an American backlash​Financial Times

Laid-off with a non-compete? Bill would guarantee salaryComputerworld

“We applaud EARN’s efforts to negotiate to eliminate the non-compete agreements in its members’ employment contracts. We’ve offered our advice to help make this new model for negotiating non-competes successful.” – Greg Junemann, President, IFPTE

“IEEE’s Worcester (Mass.) Section supports EARN’s efforts to reduce the burden of non-competes on Massachusetts technology professionals. Non-compete agreements lower the Massachusetts technology workforce’s ability to respond to changing market conditions, and thereby reduce the flexibility and competitiveness of the Bay State’s economy. These agreements can have a chilling effect on individual professionals’ ability to pursue careers they have studied hard and invested to achieve. A one year non-compete is equally damaging as it makes it impossible to maintain career continuity or to pursue a bona fide offer in a similar field. We would support specific intellectual property exclusions to protect corporate trade secrets rather than blanket restrictions on responsible professionals.” – C. Vernon Gaw, Chair, Worcester County Section, IEEE

Add your signature to our petition to join EARN-TEE now:

 

Your signature and phone number are needed to meet NLRB electronic signature requirements (p. 5) . Your signature and contact info will be submitted to the National Labor Relations Board (NLRB), a U.S. Government agency responsible for protecting workers. Your name and contact info will be kept confidential by the NLRB and EARN, and will not disclosed to Dell EMC (see our Privacy Policy).