Many employers abuse the non-competition clause to retain employees longer. New rules should put an end to this. If it is up to the government, you will soon be able to earn money even if your boss does not let you go.
Anyone who thought that the non-competition clause only applies to highly educated technicians with access to trade secrets is wrong. One in three employers includes such a clause in the contract. In total this concerns around 3.1 million employees, according to figures from research agency Panteia. This has actually become a kind of standard clause, says CNV union chairman Piet Fortuin.
“And the tight labor market has only made things worse,” he sighs. “We see the most absurd situations of people being held without having access to relationships or sensitive information. Hairdressers, shop assistants, carpenters. What specific knowledge do they have? It can even lead to employees no longer daring to switch to another company. That really has to stop.”
Court
For example, a security technician recently faced his employer in court. After almost twenty years, he wanted to switch to another company where he could earn 450 euros more per month. His boss invoked the non-competition clause and banned him from doing similar work in the Netherlands for a year.
The judge ultimately ruled in favor of the mechanic. “The non-competition clause is not intended to prevent employees from leaving,” the ruling stated. The employee could be held to the non-solicitation clause, which means that you are not allowed to just take customers with you.
The court has been teeming with these types of cases lately, sees employment lawyer Pascal Besselink of DAS. “The non-competition clause dates back to 1907 and was amended in 2015 for temporary contracts. Employers regularly invoke the clause, but often without success. An employer must really explain why someone cannot simply switch to a competitor. That bar is often high.”
To suggest
The government has made a number of proposals to modernize the non-competition clause. For example, the clause must have a maximum term and be geographically defined. If employers rely on an important business interest, this must be clearly justified in the contract. A departing employee must also be entitled to compensation if he is held to the clause.
Trade union CNV is strongly in favor of the reform, says Fortuin. “Of course there are also good examples of people who bring a lot of knowledge and skills with them. You can make appointments there. If not? Then we propose that an employer must pay 80 percent of the last earned wage to retain someone. Then you will see how quickly the non-competition clause is only used for the purpose for which it is intended.”
According to Besselink, the proposed changes are quite drastic. “If it costs money in the future, an employer will probably only hold an employee to a clause if it is really worth it financially. Then you are talking about that top researcher from ASML who switches to a competitor, for example. There are still plenty of situations where it is a logical clause. But the majority of the 3 million employees may soon be freed from it.”