I have seen contracts (relating to employment) which contain terms like "by accepting this position you agree to sign an NDA that you will be provided on your first day of work". To my understanding these are unenforceable.

Can a person be fired for refusing to agree to a contract? Assuming my above understanding is correct, does it make a difference if they had at any point agreed to agree to a contract? Often times when a person is hired there is an on boarding process which contains a bunch of paperwork. Hypothetically could a person refuse to sign it and not get penalized?

There can be many (legitimate and illegitimate) reasons why someone must sign something relating to their employment. For example I was given the added responsibility to do work on the servers which were located in a rented secure building. This building had their own paperwork I needed to fill out for clearance purposes (like a background check). If I refused to do this could I have been fired?

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    The answer may depend on what province you live in, but generally employers don't need to have a reason to fire someone in Canada. Instead, all they have to give you is required notice or pay in lieu of notice. – Ross Ridge Mar 5 at 9:12
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    More worrying is being force to agree to something you have not yet read. Signing a contract assumes that it has been read and agreed to. – Mark Johnson Mar 5 at 9:35
  • @MarkJohnson In general, you're of course correct. In the specific case of NDAs, they're usually so boilerplate that never once in my experience operating as a subcontractor have I ever had a client ask for anything that wasn't already handled by the form contract I agreed to years ago. – chrylis -cautiouslyoptimistic- Mar 5 at 17:34
  • @RossRidge I think that's incorrect, employment in Canada is not at-will duttonlaw.ca/at-will-employment-canada – fetcheatable Mar 7 at 10:23
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    @fetcheatable Canada isn't at-will since, as I said, notice is required to fire someone for no reason (ie. without cause). However, for employees that have only worked for a company for short while, less than 3 months in Ontario. then the statutory notice period is 0 days. – Ross Ridge Mar 7 at 11:23

An agreement to agree is void

There is a multitude of case law on this point.

If the NDA was not available to you when you signed the employment contract and the term was couched as you describe; then the term would be unenforcable. That is, your employment contract would be binding except for that term i.e. you could not be compelled to sign the NDA. Now, there may be a requirement on you to negotiate in good faith in an attempt to find an NDA you can agree to but if you can't find one you can't find one.

You cannot (legally) be fired for this reason.

Now, if the NDA was available, and you were told where to find it, and irrespective of if you did or didn't find it, you would be bound to the NDA.

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    +1, but to be a complete answer it should probably address the question directly. The fact the employee cannot be compelled to sign the NDA doesn't say anything about whether or not that employee can be fired for not signing it (or fired without needing a reason, per RossRidge's comment on the question). – JBentley Mar 5 at 17:58
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    @JBentley: Fired, no. But he could be laid off immediately and collect only the one day's pay. Legally this distinction is important. – Joshua Mar 5 at 19:45
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    Also, even if the employee could not be fired, there are many lawful means a company could employ to try to coerce cooperation. It's a bad plan to accept an employment contract such as the OP describes with an expectation of refusing to sign the NDA, regardless of whether that provision of the contract is actually enforcable. – John Bollinger Mar 5 at 20:07
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    It sounds like bad wording in the Employment Contract to me. You can't get someone to "agree to sign an NDA," but you can certainly make an employment arrangement contingent on the signing of an NDA. – Robert Harvey Mar 5 at 20:11
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    Footnote to the last bit about being bound by the NDA "irrespective of if you did or didn't find it". I realize this is about Canada, but the US Supreme Court very recently ruled on that question "The question here is whether a plaintiff necessarily has ‘actual knowledge’ of the information contained in disclosures that he receives but does not read or cannot recall reading. We hold that he does not." though they did say "willful blindness" is not an out. Canadian law may use similar logic. – Schwern Mar 5 at 20:53

Yes, exactly as DaleM says, a contract can't oblige you to sign another contract. But this gives you no relief.

Most employment is consensual.

You can be terminated for any reason or no reason at all, except certain protected reasons like religion, race, sexual orientation etc.. Refusing to sign an NDA is not a protected reason.

However, the mechanism here is that the employer is trying to place you a job assignment that requires the NDA. That doesn't work, and they don't have any other assignments available to you, so they are laying you off through the usual layoff process for your country, e.g. There is a notice period for Canada.

I'll make a metaphor. A defense contractor branched into computer video games. When the games division folded up, they tried to protect the jobs by transitioning the game programmers into defense work. Some of them did not want the coercive rules of DoD employment. The gamer isn't compelled to work in defense, and the company isn't compelled to find other work. This adds up to "layoff for lack of work".

So they don't owe you much

They don't owe you a job (unless for other reasons they do; union, tenure etc.) And you can't get any damages out of them unless you can show that they misled you in some way and cost you money.

So that takes you down to whatever layoff/severance they would owe you under CA law, and they could try to go to court to fight that, but probably would not, because the litigation would cost more than the severance.

One last point: I see you having no relief, if all the NDA terms are things that are already required of you (because they simply restate law, case law or the contract you did sign.) For instance, an odd UK practice is asking people to "sign the Secrets Act". Well, the Secrets Act is already law, and UKers are already bound to it whether they sign it or not.

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