Home » Commentary » Can Your Employer Refuse to Give You a Copy of Your Signed Non-Compete?

Amanda DeMatteis: Hi, Josh.

Josh Goodbaum: Hi, Amanda. What are we talking about today?

DeMatteis: Well, we have another viewer question, which is really exciting. Thank you so much if you leave us questions on our YouTube page. You can pop over there and leave a question on any video that you see of ours.

Today’s question is about non-competes. And it is: What if I signed a non-compete, or at least my employer is telling me I signed a non-compete, but they won’t give me a copy of it, so I don’t know what my restrictions are? What do I do? Do I have any rights?

Goodbaum: That’s a tough situation, Amanda, and I have to admit – of the hundreds and hundreds of non-compete cases that I have dealt with – I’ve never seen that one. But we got the question, so apparently, someone is dealing with it, and here’s my advice if your employer refuses to give you a copy of your non-compete.

Number one, if you work in Connecticut, you might have a right under Connecticut law to access your non-compete. Connecticut has a law called the Personnel Files Act that gives you the right to access certain documents collected and maintained by your employer. And so the first thing I would do is write to the employer, invoke the Personnel Files Act, say, “Under the Personnel Files Act, I’m asking for this document. Please send it to me.”

If your employer doesn’t answer or they refuse to provide it to you, I’d go to the Connecticut Department of Labor. They’re the ones who enforce the Connecticut Personnel Files Act, and I’d file a complaint with them. Worst thing that happens is the DOL says, “No, you weren’t entitled to it.”

Meanwhile, I would make sure to ask my employer in writing for the non-compete, and I would say why I want it. I would say, “I need this non-compete because I want to ensure that I am complying with it and I want to be able to talk with a lawyer about what my rights and obligations are.” Hard to see why your employer would deny it in that circumstance.

If you’re a former employee and there might be some really confidential information in your non-compete, you can even add another sentence that says, “You can cross out anything you think is truly a trade secret or would compromise your business.” That way, the employer really has no reason to deny this non-compete to you.

I have to say that I have never faced this situation in a court where an employer was trying to enforce a non-compete that they refused to give to an employee, but it’s difficult for me to imagine that a court would enforce such a contract.

Enforcement of non-competes almost always happens in the context of what’s called a temporary restraining order or a preliminary injunction – basically, an early phase in a case where an employer is trying to stop you from working for a competitor. And in that situation, the court, in addition to taking into account the enforceability of the contract and all the circumstances around it, will also exercise its discretion to evaluate what are called the equities of the case. They’re basically doing a fairness analysis, and I would have to think that a court would incorporate into that fairness analysis that the employer really didn’t give you enough notice to plan your actions and to make sure that you complied with your non-compete.

So, although I haven’t done an exhaustive search of the case law, I have quickly found that I don’t think this issue has come up. But still, that’s what I predict would happen.

Here’s a good way to avoid this problem: If you sign a document, save a copy of it. That’s easy to say in hindsight, of course, but really, anytime you sign a document – whether it’s involving your employment, whether it’s a promise to do or not do something in the future, or whether it has nothing to do with your employment – probably a good idea to create a folder on your laptop called “Contracts” and put it there. That way, this issue won’t come up. But if it does, I think you’ve got a pretty strong argument that the employer is going to have a hard time enforcing a non-compete that they refuse to give to you after you’ve asked in writing.

DeMatteis: That’s great advice. And it’s true, sometimes we get so busy we forget to protect ourselves in certain ways. So, save a copy of documents that you signed.

Thank you so much for the question. Feel free to ask more. We’ll see you next time. Take care.

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