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I'm a software developer at a company that develops software for the healthcare industry. Recently I received an interview call from another company that creates pretty much the same products that we do.

When joining my current company, the offer letter was sent to me by email and I only signed it a month later when I actually joined. At the time of signing the offer letter by my employer and me, I was also given the employment contract which was signed by my employer and me. I'm a staff employee now.

The offer letter states:

During and after the period of employment with the company, you will not engage in any endeavor or activity which conflicts with the interests and business of the company or join a competing organization, for a minimum period of two years.

The employment contract however, does not contain the above paragraph.
There is a clause on confidentiality and non disparagement, but nothing that says that I should not join a competing organization.

The employment contract also contains this clause:

Entire agreement; Amendments:

a) This Agreement supersedes and cancels any and all previous understandings, representations and agreements of whatever nature between the parties with respect to the matters covered herein.
b) This Agreement sets forth the entire agreement between the parties with respect to the subject matter herein and may be amended only by an agreement in writing signed by all the parties hereto.

Does this mean that I can interview with and join the other company or is it implicitly understood that the paragraph in the offer letter should be honored?

  • Can you clarify the dates on which each document were received and actually signed? Assuming they were executed simultaneously its a grey area, but if one was executed after the other, then that could make a difference. You are lucky in as much as courts are generally reluctant to enforce non-compete agreements. – davidgo Jun 24 '16 at 2:33
  • The dates mentioned on the offer letter an employment contract are 3 months apart. Like I mentioned, the offer letter was sent by email at first, acknowledged by email and signed 3 months later (they were willing to sign it at the time they sent it too). – John David Jun 24 '16 at 3:08
  • Certainly I am not a lawyer - and it would be worth seeing one if you are contemplating shifting, but you could most likely get away with it legally - although the other party might drag you to court anyway and make your life difficult. – davidgo Jun 24 '16 at 3:10
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The entire purpose of the Entire Agreement clause is to say that this contract is the agreement, and anything previously negotiated is not part of the agreement. I don't know why they would fail to include that in the contract.

  • Could they have only included it in the offer letter in order to fend off potential "spies" of other companies who join just to glean company secrets? And then not mentioned the paragraph in the employment contract because it is an unreasonable clause? Would any employer do such a thing? – John David Jun 24 '16 at 15:52
  • Since non-compete clauses are common, that would be odd, but maybe in your field it's the norm. My money is on screw-up, where the left hand doesn't know what the right hand is doing. – user6726 Jun 24 '16 at 16:15
  • Yes, I think it might be a screw-up, because the employment contract is an old version of when the company was located in another city, and that city's name is mentioned in some clauses, whereas the current city should've been mentioned. Even if it is a screw-up, it it right/safe to ignore the paragraph in the offer letter and join another competing company? – John David Jun 25 '16 at 17:58
  • If you want a legal opinion about legal safety, you have to hire an attorney. I'm saying that from my academic understanding of law, especially with an Entire Agreement clause, things in a letter of offer cannot be enforced against you. As for the moral question, my stance is that it depends on what you thought you were agreeing to. If you were aware of the non-compete clause and were willing to take the job under those circumstances, and you did not rely on the Entire Agreement clause to set aside the letter of offer, then you do what you agreed to. – user6726 Jun 25 '16 at 20:16

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