IR Search Anton van Rossum

Anton van Rossum 

23 June 2021

T.M. asks:

For some time now, I’ve been in touch with an American high-tech company about a position in a new development department to be set up in the Netherlands. The talks went well and I received an offer letter that included salary, bonus, pension and vacation days. A document containing an IP clause, a non-disclosure clause, a non-compete clause and a non-solicitation clause were sent separately. Both had the signature of the company CEO on them. Eager to join, I signed them and sent them back.

When I inquired with the manager if I would still get a contract, I was asked if the signed documents weren’t enough. I’m a little unsure about this because the offer letter explicitly states that the document isn’t a contract. Furthermore, the IP, confidentiality, non-competition and non-solicitation clauses have been drawn up under the name of the American inc. Both documents are governed by California law on the one hand and Massachusetts law on the other.

I wonder what this means for me under Dutch law. It’s also unclear to me whether the contract is permanent or temporary. Could you please guide me through this?

The headhunter answers:

Your case shows that some knowledge of legal matters can come in quite handy when concluding an employment contract. First, unless you’ve specifically agreed upon a period in writing, the contract is for an indefinite period. Second, under Dutch law, an employment contract doesn’t have to be signed in writing. Oral agreements are also binding. It’s essential to concur on the main aspects, such as the tasks/responsibilities, the start date and the salary. By signing the offer letter and the document containing the restrictive covenants, you’ve ruled out any discussion about the content of the agreement. All matters not governed by it are automatically governed by law.

Somewhat confusing is the phrase stating that the offer letter isn’t a contract. I advise you to cross out this particular sentence, initial your amendment and ask your employer to do the same. This document can then serve as written proof for the time being. In the long run, I’d advise you to get a complete contract that includes all clauses.

The restrictive covenants are obviously very important. You can have an NDA and non-solicitation clause with any natural or legal person, so they’re certainly valid. However, under Dutch law, a non-compete clause must be signed in writing by both you and your employer, being a Dutch legal entity, governed by Dutch law and not by the law of any US state. Also, it must be included in the employment contract. Because that’s not the case here, I conclude that this clause is invalid.