Can the company require that I sign a new version of a non-compete agreement before being laid off or else lose my severance?

I will be laid off; my last day is in 2 days. 7 years ago I signed a non-compete agreement with the company, in which I agree not to work for a specified list of competitors for 6 months if I left the company involuntarily (all key employees at that time had to signed this agreement as a condition for employment). In return, I would receive 6 months of severance pay. The main body of the agreement covered the terms and geographical scope (geography covered North America, Latin America, and Europe). An “Attachment A” included the names of the companies I could not work for for 6 months. Since I am unable to locate a copy of the agreement, I’ve asked HR to provide me with a copy of the agreement, specifically the version that I signed. First, their response was to only provide me with “Attachment A”. I asked again for a copy of the main agreement; however, I was sent 3 year old version of the main body. The HR person said this is the only version that she has. I reviewed the version and compared it to copy of the earlier agreement which a colleague of mine has. It is different with one of the key differences being that geographic scope included also Asia. As I plan to search for position in the Asia Pacific region, which was allowed under the version I signed, abiding by the later version would further limit my ability to secure employment. Could my company ask me to abide by the latest version of the non-compete agreement? Could they ask me the sign the new version on my last day? If I don’t, could my company not give me my severance?

Asked on November 28, 2011 under Employment Labor Law, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Someone can't enforce what they don't have... and that works both ways.  If your company wants to enforce the original non-compete agreement, they are going to have to produce a copy signed by you.  The "newest version" isn't going to be enough... since that does not reflect the agreement that you entered.  Conversely, if you want to enforce their obligation to pay severance for six month, you're going to have the same enforcement issue if you can't find a copy to enforce with.  Assuming that one of you can find the agreement, that is the agreement that will be enforceable and binding.... stick with it.  They cannot unilaterally change the conditions without a new benefit being offered and accepted by you.  For example, if they want you to sign a new non-compete and in return they agree to offer you a twelve month severance package, instead of the original six... then this change reflects something new being offered to you.  Even if they don't offer you a better deal, they can ask you to sign the new version of the non-compete clause, but you still have the right to refuse and insist on compliance with the original version that you did sign.  The last part of your question is regarding their refusal if you don't sign....they may refuse, however, if they do, you would have a viable lawsuit to enforce payment of the severance agreement. 


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