IBM could face more trouble from labour unions over its use of contracts with customers and partners that prevent them from recruiting IBM employees.
The Danish IT workers union PROSA, which has sued IBM over its use of such contracts in Denmark, has come to an international meeting of IBM unions in Paris this week to try to drum up more support for its cause.
At issue is IBM's use of nonsolicitation and no-hire clauses in contracts in Denmark and elsewhere. Nonsolicitation clauses prevent a company from trying to hire away another company's employees, while no-hire clauses prevent them from employing workers who come actively seeking a job.
Earlier this year, PROSA sued IBM in Denmark over its use of a nonsolicitation clause in a 2004 acquisition agreement with Moller-Maersk, a container shipping company. It believes the provision violates Danish Labour law, particularly since IBM did not notify the workers to whom the restriction applied. IBM has denied any wrongdoing in the case.
PROSA filed the suit on behalf of Claus Juul, a former IBM security consultant who believes he was covered by the nonsolicitation clause. Juul said he was concerned such clauses are unfair and limit the ability of workers to switch jobs. He made inquiries internally and was unsatisfied with IBM's response, he said, so he approached PROSA and they suggested legal action.
In April, Juul traveled to IBM's shareholder meeting in the US where he planned to raise the issue of IBM's labour practices with Chairman and chief executive Sam Palmisano, but the meeting closed before Juul was able to ask his question. Soon after he returned to Denmark he was fired, he said, for "disloyalty".
Juul and PROSA are at the Paris meeting this week to encourage other unions to pay closer attention to the issue. PROSA hopes to persuade IBM Workers International Solidarity, a worldwide association of IBM trade unionists, to start collecting information about the clauses and try to determine how widespread is their use by IBM, said PROSA spokesman Bjarke Friborg.
The use of such clauses is not uncommon in business. An executive at a large IT services company in Europe, who spoke on the condition that his company not be identified, said such clauses typically last two or three years and are necessary to prevent customers from hiring away a service company's best people part way through a contract. They can also be difficult to enforce, the executive said.
In an interview in Paris, Juul acknowledged that IBM may not be alone in its use of nonsolicitation agreements. But because the company is so big, he said, it's important to determine how frequently it includes them in its contracts, because their widespread use would affect the freedom of IBM workers to find jobs at other companies.
IBM Denmark informed its workers earlier this year that they may have been covered by a nonsolicitation clause that was included with IBM's sale of its PC business to Lenovo Group, Juul said. That clause was intended to ensure that Lenovo didn't hire away IBM workers following the acquisition. IBM also had a nonsolicitation clause in a contract to provide services to the Danish Tax Authority, known as SKAT, Computerworld Denmark reported, although that clause has since been removed.
Such contracts have been the subject of debate in Denmark recently, and in November IBM Denmark announced to its employees that any of them who were affected by nonsolicitation clauses would be notified of that fact. PROSA was unsatisfied, however, and accused IBM of reacting to negative press coverage of its nonsolicitation agreement with Moller.
Meanwhile the issue may spread to other countries. Belgium's largest union, ACV-CSC, said it has contacted the country's labor department to ask whether nonsolicitation clauses are legal in Belgium.
PROSA believes Juul is entitled under Danish law to compensation from IBM for its nonsolicitation clause. It is also considering further legal action over what it views as his wrongful dismissal.
IBM would not comment on PROSA's lawsuit while the case is ongoing. Regarding the legality of nonsolicitation clauses, it said that "laws vary from country to country. IBM complies with the laws of the countries in which it operates".
Kristian Hansen of Computerworld Denmark contributed to this story.
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