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| First Person |
The Firing Line
Alan L. Sklover
08/02/2004
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Over the past six months or so, a new weapon of
morale destruction has arrived from England: garden leave. This device,
incorporated into initial hiring letters or other agreements, requires employees
to give extraordinary preresignation notice, up to six months. After they do,
this provision prohibits the employees from working elsewhere, so they simply
“tend their gardens.” Garden leave is proving to be an especially effective way
to dampen the free flow of human capital. One contract I negotiated recently
even forbade the employee from negotiating future employment during her garden
leave. Akin to demanding that someone stay in an unhealthy friendship, these
efforts are inevitably doomed to failure.
These defensive measures are not
especially effective; they must be enforced in courts, which are notoriously
reluctant to limit employment freedom, and these days juries are not very
employer friendly. Defensive measures can actually backfire: employees tend to
resent restrictions, and often cite them in their decision to
leave.
Attorneys circumvent these legal barriers in court, where judges seek
to achieve fairness and equity. They rarely find that curtailing freedom is
fair. Even restrictions that are enforced are done so only for what is deemed a
reasonable period, usually far less than was initially agreed.
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