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Is this school asking too much. Can't go to any competition for a year after I leave
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wushijiao -

I agree with Kudra- I just can't imagine that they would ever enforce that clause. Would they
really sue you if you worked for another school? How would you define "direct competitor(s)"
anyway?

Has anyone ever heard of this type of clause being put into effect?



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Hero Doug -



Quote:


Originally Posted by roddy

but how do you decide on what is a 'direct competitor' or a 'similar teaching style'?


The U.S. patent office show's that's it's all in the wording. All teaching styles are the same,
one teacher, one to many students, the teacher teaches, the students learn, it's quite a broad
description.



Quote:


Originally Posted by tianma

I'd love to sign such a contract. According to the law, they have to compensate you after you
leave the company for not being able to work for a competitor. The compensation is normally being
paid every month and is 1/3 of your former salary.


Thanks for the links, I'll be sure to read them, nice to have a bit of an ace up my sleeve when
negotiating. I read article 4 of the sample contract you posted and it's perfect. It's helped me
reach a solution which I'll post when finished responding.



Quote:


Originally Posted by kudra

obviously they have some super-duper top secret teaching method, that they don't want you to
steal. I can't believe it would be possible or worth their time to enforce it.


lol, if by super-duper you mean nothing special, then you're 100% right. And I'm not sure they'd
be able to enforce it either, once I leave I leave, that's all there is to it.

The thing is though I know all the major schools in the area send their workers to each other's
schools to keep tab's on prices and what-not, so it's likely that they may casually bump into me
when doing this. It happened to my girlfriend actually, from people from a couple of schools she
worked at.



Quote:


Originally Posted by Jockster

I've seen non-competition clauses like this before. What I think is fundamentally wrong is that
when someone is educated for a certain job then that is his bread and butter and therefore it is
unreasonable to demand this from him/her.


Well said, I like the wording as well. It would legally force me to go to another city if I left
that job, and the legal system is getting to a point where it just might be enforceable.



Quote:


Originally Posted by zhwj

More likely, after working at this school for a bit, you get hired away by one of the co-founders
who splits off from the school to found his own place, taking many of the teachers with him. In
this case, the presence of the clause on teachers' contracts acts as a disincentive to the current
partners to break off, since they won't be able to take teachers with them.


Actually quite a funny story here. The school I'm considering (a) stole everything from another
school (c), as did another school (b). The funny thing is that the school (c) the other two
schools stole everything from (a+b) stole everything from another school themselves.

To the solution

I think I'll decide to leave it in the contract. I'll let them have their sense of security, but
it should come at a price.

I'll take a (well many) clause from the article tianma posted.



Quote:

4. Payment of compensation fee


4.1 Within, but not exceeding one month after Party B’s Separation from Party A, Party A shall
decide whether it requests Party B to undertake the Non-competition Obligation as well as the
period of non-competition. If Party A decides to require Party B to undertake the Non-competition
Obligation, it shall pay the non-competition compensation fee according to Article 4.2 of this
agreement.

4.2 The non-competition compensation fee shall be 50% of Party B’s annual salary (if the local
government stipulates a minimum more than this amount, such minimum shall prevail). The
non-competition period to which such compensation fee is applicable shall be 12 months, commencing
on the date of Party B’s Separation from Party A.

4.3 The non-competition compensation fee shall be paid up in full in one lump sum within, but not
exceeding one month after the formal Separation of Party B, and shall be collected by Party B at
Party A’s corporate address (or paid by Party A to Party B via bank or post office). If Party B
refuses to receive the payment, Party A may submit the payment of the compensation fee to the
relevant authority for deposit according to law. The time when such submission is completed shall
be deemed to be the date of payment of the compensation fee.

4.5 If Party A fails to pay the non-competition compensation fee to Party B within one month after
Party B’s Separation, Party A shall be deemed to have released Party B from the Non-competition
Obligation (which means that Party B may not be subject to the obligations set forth in and only
in Articles 3.3 and 3.4). Upon such time, Party B shall not claim against Party A for payment of
the non-competition compensation fee in any manner (including but not limited to arbitration or
litigation).

That should cover their worries and mine. In a way I hope they would enact it, because I'd just
hop on over to a university with 6 months pay and start another job.

I'll send my request to them and post back with their response.










imron -

For those interested, a draft copy of the law can be found online here. The relevant part is
article 16.










tianma -

looks good :-)

I would change article 4.2 slightly though:



Quote:

4.2 The non-competition compensation fee shall be 50% of Party B’s annual salary (if the local
government stipulates a minimum more than this amount, such minimum shall prevail). The
non-competition period to which such compensation fee is applicable shall be 12 months, commencing
on the date of Party B’s Separation from Party A.

When the new labor law is being established, the minimum is likely to be a full annual salary.
Therefore I'd change "if the local government stipulates ..." to "if the local or state government
stipulates ..." and you should be fine ;)










tianma -

thanks imron ...

If I understood those articles correctly, it means that the non-competition clause is limited to a
certain region and can be valid for a maximum of 2 years. And the compensation is a normal annual
salary - the last one the employee received at his/her former firm.

It would be nice to see the current legislation since this is just the draft.










imron -

I've found what appears to be copies of the relevant current legislation here (劳动法) and here
(合同法). They're dated 1994/7/5 and 1999/3/15 respectively, and came into effect on 1995/1/1
and 1999/10/1. I've only skimmed them briefly, but they don't seem to mention non-compete
agreements (竞业限制约定) unless they're using a different term from what's used in the
current draft.

Also, with the current draft, the other thing to bear in mind, is that if you break the
non-compete, then you can up fined up to 3 times the amount paid to you in non-compete
compensation, so if you're worried about this clause if/when you do go and work somewhere else,
you might want to get it in writing that your new workplace isn't in direct competition etc.

Also of interest is that the wording of the new law seems to limit it to people who have knowledge
of the business' trade-secrets, so perhaps it's unlikely to apply in a case where there are no
trade secrets?










Hero Doug -

Getting a written statement is also a good idea, a university should be safe since it's in no way
in direct or indirect competition with a private school, but always best to cover your bases.










mr.stinky -

zhwj: "the same innovative methods"

oh, c'mon, this is china fer chrissakes!! innovative??? bwahahahahah!!!!

they prolly just needed a contract, pulled something off the internet, and replaced
something like engineering with teaching.










zhwj -



Quote:


Originally Posted by mr.stinky

zhwj: "the same innovative methods"

oh, c'mon, this is china fer chrissakes!! innovative??? bwahahahahah!!!!


Naturally, "innovative" is relative, but the English training industry is driven in large part by
trends - teachers get trained in this year's popular methods, costing the school a pretty penny,
but allowing them to advertise that their teachers are cutting-edge (to a degree, of course). If
they then jump ship it's all wasted investment for the first school, and an unearned windfall for
the second.

And that's not even getting into the foreigners who land on these shores, get disgusted with the
pedagogical conditions, and launch their own programs in concert with some local entrepreneur.
I've known several of these folks, each of whom believes he is the savior of English education in
China, and who jealously guards his teaching methods. Naturally, people try to poach from them if
they're in any way successful.

Of course, you might be right about where the contract came from....










Hero Doug -

I like your theory about where the contract came from mr.stinky, highly possible.

Also, the long awaited results. Their taking the clause out, guess that's a better option then
adding the appendix I proposed above.

And I agree about innovation, everyone copies everything from everyone else here. I'll never buy
an Ineovo (I think that's the spelling) because of their blatant rip-off's of the Motorola Razor.
It's just disgusting.












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