Ncep- work non-Compete contracts

[shortstax]

Does anyone know of a good online resource to identify what’s considered normal or enforceable within a state if you’re required to sign a noncompete for work?

I know I could seek legal counsel, but I don’t have one and my consulting firm just rolled out a noncompete and gave us 6 days to sign/submit.

It bars us from taking employment with a customer, competitor or any organization we’ve tried to sell to for 2 years within 150 miles of any branch office. Based on our sales leads—-that’s nearly everyone within the major metropolitan areas of our state. Also everything would go through arbitration and we’d have to pay the firms’ legal fees.

Has anyone ever pushed back on these? Any advice?

[shortstax]

Backstory—we took a big paycut and had furloughs, so people are (understandably) jumping ship. I assume this is the firm’s way to keep more, but it does not seem like a very good retention tool, lol.

[yentl]

I don’t have a good resource but I consulted with an attorney about this years ago and their general advice was that the more broad a non compete clause is, the less enforceable it is.

[smock]

Yikes that sounds really bad! TWO YEARS?! I'm not a lawyer but I have some employment law experience, and I would definitely look for resources about what's enforceable in your state. In a lot of states, it sounds like that would be unenforceable.

Here's something you may have already seen that talks about enforceability:
www.nolo.com/legal-encyclopedia/understanding-noncompete-agreements.html

[wanderingback]

I have no specific advice on this, but I had an employment question last year. My partner’s lawyer was able to recommend someone to me (I also got 2 other recommendations). I had a brief call with him to explain the basics and he gave me some general advice. It was free. Not saying I expect people to work for free, but I think lawyers take initial meetings without expecting payment, so it’d prob be a good idea to ask contacts if they have any recs in your city/state that would be able to give you general guidance.

[rubytue]

To piggy back on wanderingback , I once needed a bit of lawyerly advice. I called my local bar referral, and for a reasonable fee (~$50), I got a referral to someone in the area I needed and the initial consult. Which was enough to figure out I didn’t need an attorney. And the consult happened the next day.

[Kristinmo]

Not a lawyer but changes to non competes are generally not enforceable unless they compensate you for it.

www.macelree.com/the-top-10-mistakes-with-non-competition-agreements/

[StrawberryBlondie]

What are you getting in return for signing?

[shortstax]

Jan 23, 2021 11:09:19 GMT -5 smock said:

Yikes that sounds really bad! TWO YEARS?! I'm not a lawyer but I have some employment law experience, and I would definitely look for resources about what's enforceable in your state. In a lot of states, it sounds like that would be unenforceable.

Here's something you may have already seen that talks about enforceability:
www.nolo.com/legal-encyclopedia/understanding-noncompete-agreements.html

Yeah the 2 years stipulation and stating that it includes anyone we’ve pitched business too makes it way too broad, IMO.

What counts as that? Have we taken meetings? Have I sent them a spam email? It all seems aggressively vague.

[shortstax]

Jan 23, 2021 11:18:52 GMT -5 rubytue said:

To piggy back on wanderingback , I once needed a bit of lawyerly advice. I called my local bar referral, and for a reasonable fee (~$50), I got a referral to someone in the area I needed and the initial consult. Which was enough to figure out I didn’t need an attorney. And the consult happened the next day.

I hadn’t considered this and might look into it on Monday, thanks!

[shortstax]

Jan 23, 2021 12:36:41 GMT -5 StrawberryBlondie said:

What are you getting in return for signing?

Nothing, but maybe this is my leverage to ask for more.

Also, I’ve had one interview for a role for a huge organization where one tiny business unit is a client of ours. Maybe I’ll just try and kick this can down the road a bit and hightail it out of here. The writing seems to be on the wall...

[SusanBAnthony]

H did some research (not a lawyer) and found in our state it wasn't enforceable if it keeps you from earning a living. They can pay you for the 2 years if they really won't let you work for a competitor. Otherwise you have to be able to earn a living. But it does seem to vary significantly from state to state, generally leaning towards not being enforceable.

The arbitration clause would piss me off- who chooses the arbitrator? We all know how that goes. The rest probably wouldn't stop me from signing because I think the odds they come after anyone in my industry is zero. For H, he worked on a technical thing that is trade secret so he could see them actually trying to enforce it.

[tiki]

I hate noncompetes so much, and have occasionally pushed back and had them eliminated from job offers or at least had the timeline shortened or had certain sections removed. The larger the company, however, the less likely they are to make exceptions for individuals.

In your case, I would consult an employment lawyer in your state.  They will know they need to act fast to review your paperwork and provide guidance. Enforceability is highly variable from state to state, and I have absolutely seen former employers take people to court over them.

[NewOrleans]

ESF is too busy for us, but this post would give her a whole nosebleed

[shortstax]

Jan 23, 2021 14:47:40 GMT -5 NewOrleans said:

ESF is too busy for us, but this post would give her a whole nosebleed

No joke, I totally thought of her when I got to the arbitration part of the document.

[ellipses84]

I highly recommend you consult an attorney. And tell your firm you need more time to review because you are consulting an attorney. Ask around and find a rec for a good employment attorney who will do a free consult over the phone. I don’t know your role or pay, but unless you are highly compensated in an executive type role, I’d be hesitant to sign.

[StrawberryBlondie]

Jan 23, 2021 13:09:12 GMT -5 shortstax said:

Jan 23, 2021 12:36:41 GMT -5 StrawberryBlondie said:

What are you getting in return for signing?

Nothing, but maybe this is my leverage to ask for more.

Also, I’ve had one interview for a role for a huge organization where one tiny business unit is a client of ours. Maybe I’ll just try and kick this can down the road a bit and hightail it out of here. The writing seems to be on the wall...

This isn't legal advice, just general info.

The answer to this question matters. You have to get something in exchange (the legal term for this is "consideration" and it's a requirement for contracts to be valid). In some places, the job is considered that something. In others, it has to be more.

What would happen if you say "no thanks." Would you keep your job or get fired?

[aurora]

I am not a lawyer, but I would at a minimum push back on the 6 days and consult a lawyer. That seems like a lot of pressure to put on employees.

H had to sign a non-compete at his previous company. He did consult a lawyer, who said in our state it probably wasn't enforceable since it would have prevented him from earning a living in the field in which he was educated. Even so, nobody wants to go through the legal fight after the fact if the company does try to enforce it.

My memory of it is that it is very state-dependent.

[tiki]

Jan 23, 2021 17:06:15 GMT -5 aurora said:

 Even so, nobody wants to go through the legal fight after the fact if the company does try to enforce it.

This is basically the advice I was given. That even if a noncompete is ultimately found unenforceable, by the time you've hired an attorney and responded to a suit, you can already be out $25k (plus your time and stress).  

[waverly]

DH was successful in not signing one when he first took a job.

I would not sign it and let them fire me if they were going to. I don’t think they will fire you if they are trying to retain people. But you never know. But I definitely wouldn’t sign.

[shortstax]

Jan 23, 2021 13:09:12 GMT -5 shortstax said:

Jan 23, 2021 12:36:41 GMT -5 StrawberryBlondie said:

What are you getting in return for signing?

Nothing, but maybe this is my leverage to ask for more.

Also, I’ve had one interview for a role for a huge organization where one tiny business unit is a client of ours. Maybe I’ll just try and kick this can down the road a bit and hightail it out of here. The writing seems to be on the wall...

just quoting this in case anyone's looking at this post later for a similar issue.  In my state (OH) "continued employment is sufficient consideration."     Also, the references I found show that in my state they're enforceable even if you are terminated by the employer without cause.  That seems extreme, but just the kick I need to consult an attorney.  Thanks for all of the advice!

[Deleted]

Jan 23, 2021 15:17:45 GMT -5 ellipses84 said:

I highly recommend you consult an attorney. And tell your firm you need more time to review because you are consulting an attorney. Ask around and find a rec for a good employment attorney who will do a free consult over the phone. I don’t know your role or pay, but unless you are highly compensated in an executive type role, I’d be hesitant to sign.

This is what I’d do. I am guessing they’re betting on fear leading to people to sign, which is awful.

[sent]

Not a lawyer, but everything I've heard about this says it is not enforceable if it keeps you from earning a living which several posters have already mentioned. And that the mileage has to be reasonable given your area. 150 miles in a metro area sounds unreasonable unless you are some super specialized industry. These are regularly a part of contracts when hiring doctors, and I've known some colleagues to go after doctors they employed when that doctor broke the non-compete. It costs a lot in legal fees and the owner doctors really only did it if the former employee was aggressively trying to poach business.

[kath16]

What are they saying will happen if you don’t sign it?

Six days and then what?

I agree with others that it doesn’t sound enforceable. But if you can swing a consult, it can’t hurt

[ESF]

www.nela.org is the address for the national employment lawyers association. You can search for lawyers in your area, and you also may be able to contact the organization for information on this if it's not on their website.