Review your Delaware job offer

Authors: Stephan Duceprin (Fall 2023 MIT Pay Equity Student Researcher), Kristin Smith, JD, MBA (MIT Equal Pay Working Group), Yining Duan
(Spring 2024 MIT Pay Equity Student Researcher)

THIS IS NOT LEGAL ADVICE.

State resources: Delaware Division of Human and Civil Rights

Federal resources: Equal Employment Opportunity Commission

Does your job offer require that you sign a non-compete agreement?

With the exception of a physician, Delaware lacks statutes and regulations to govern non-compete agreements. As such, the enforceability of non- compete agreements in Delaware is largely determined by the courts. As discussed in the Kodiak Building Partners, LLC, v. Philip D. Adams case: Delaware courts “carefully review” noncompete and nonsolicit provisions to ensure that they “(1) [are] reasonable in geographic scope and temporal duration, (2) advance a legitimate economic interest of the party seeking its enforcements, and (3) survive a balancing of the equities.”

Additionally, 6 DE Code § 2707 (2022) governs non-compete agreements with physicians. This code specifically provides, in part, that “[a]ny covenant not to compete provision of an employment, partnership or corporate agreement between and/or among physicians which restricts the right of a physician to practice medicine in a particular locale and/or for a defined period of time, upon the termination of the principal agreement of which the said provision is a part, shall be void.”

Does your salary match the salary of your co-workers?

Delaware law prohibits differential rate of pay based on gender. See 19 DE Code § 1107A. In particular, this statute provides that no employees shall be paid a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort, and responsibility, and which is performed under similar working conditions. As an exception, however, Employers can vary pay pursuant to a differential based on another factor other than sex, such as a seniority system, a merit system, or a system which measures earnings by quantity or quality of production.

Delaware law also has a number of protections surrounding an employee’s ability to discuss wages, including making it unlawful to require as a condition of employment that an employee refrain from inquiring about, discussing, or disclosing his or her wages or the wages of another employee. See 19 DE Code § 711J

Additionally, the National Labor Relations Act prohibits the rights of any employee covered by the Act to discuss wages in face-to-face conversations and written messages. While employers may have policies against the use of company equipment when using some types of electronic communications, like social media, it is still the case that policies that specifically prohibit the discussion of wages are themselves unlawful.

Assuming your employment is “at will,” can you negotiate for contractual protections?

It is not common to negotiate for additional contractual protections, but this is a question that should especially be reviewed for potential employees seeking executive level positions as well as positions that require an employee with specialized skills. For these situations, it is recommended to seek advice of an attorney. And further to these general factors, employees may also be able to negotiate for various job benefits, such as training opportunities. Even when it is not possible to negotiate for benefits that are governed by company-wide policies, such as perhaps retirement benefits or health benefits, it is often beneficial to compare and consider these benefits when assessing multiple job offers.

Have you properly excluded your individual inventions prior to accepting your job offer?

As an initial matter, inventor(s) are presumed to be owners of any patent rights that stem from their invention unless those patent rights have otherwise been properly assigned. See 37 CFR 1.41 Inventorship; See Manual of Patent Examination Procedure 2109 Inventorship.

With that said, it is not unusual for employers to ask employees to sign an agreement requiring employees to assign inventions created during the course of their employment to the employer. It is often beneficial for employees who have their own inventions to identify any and all inventions and other intellectual property (IP) to which they intend to retain ownership rights. It is highly encouraged to consult with a lawyer when employees are looking to negotiate a contract that involves the assignment of individual inventions.

Does your job offer require that you sign a forced arbitration agreement?

Many employers require that employees sign arbitration agreements that waive the employee’s right to pursue claims in court or to pursue claims collectively or through class actions. In most cases, such agreements are permitted. Some employers’ agreements have opt-out provisions which allow you to opt-out of the arbitration process. It is generally a good idea to do so if given the option. Additionally, some employers have elected not to force their employees to sign such agreements and whether a prospective employer requires that you sign an arbitration agreement can be one factor you consider when evaluating multiple job opportunities.

This work is licensed under the Creative Commons Attribution-No Derivatives 4.0 International License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nd/4.0/ or send a letter to Creative Commons, PO Box 1866, Mountain View, CA 94042, USA. Content is current as of April 2024. Additional resources can be found at http://www.mass.gov/orgs/the-attorney-generals-fair-labor-division

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