Yes, from an employees perspective it is outright evil that businesses can force you to sign a non-compete in order to secure your employment. Cases in court occur routinely where businesses are accused of forcing employees to adhere to their non-compete agreements. (P.S. we go into the nuances of Non-Competes in a different article) This includes former employees who are attempting to start life anew by quitting their job and obtaining another one. On some occasions, new employers who take over as a result of a hostile takeover, or simply a new supervisor replacing an old one, will upload an employees valuable contact-client lists and information to a secure database and then fire the employee. The supervisor then attempts to make the employee adhere to the non-disclosure agreement for two years. If they don’t the business likely has the resource to financially outlast the employee in a lawsuit. Tisk. Tisk. Would a court uphold such an agreement? Yes. And no. It depends, on the state, the court, the judge.
Such situations strongly suggest that some of the laws in this realm need to be revised. Nevertheless, if you’re trying to get out of a non-compete agreement you do have rights. An employee who is a step ahead of the game has already had an attorney consult them and review a non-compete agreement before they signed it. If you happen to be one of those people kudos to you. If not, you still likely have some legal arguments to side-step your non-compete agreement. We put together 5 ways you may be able to get out of your agreement.
1. Your Employer breaches the contract:
If your employer put the non-compete clause in your employment contract listing out such things as insurance, compensation, termination, and other such conditions concerning employment, it is important you have an attorney go through the contract literally, line-by-line. If the employer breached the agreement at all by adhering to anything in the non-compete agreement, then you, the employee, may be released from all responsibilities under the contract. In basic english, this means if your employer messes up their side of the bargain it will help you in the long run get out of a non-compete agreement.
2. No Legitimate Interest To Enforce:
An employer has no legitimate interest in enforcing a non-compete against employees that are not in the executive, administration, or higher-up status of employment. Basically, positions such as secretary and other clerical employees really should not have to adhere to a non-compete. For example, a company that makes software for attorneys has no legitimate interest in preventing an employee from working on software for accountants. An who abandons a demographic, area of business, product, or market has no interest in the area they abandoned. The following are business interests justify allow non-compete agreements:
- Goodwill associated with an ongoing business or professional practice
- Trademark, geographic location or marketing/trade area;
- Trade secrets
- Valuable confidential business or professional information;
- Substantial relationships with specific prospective or existing business customers, patients, or clients
3. Agreement Is For Too Long A Time Period:
States have non-compete statutes. These statutes will likely determine the length of time that a non-compete can be held against you. One state may only say that 6 months are valid or a non-compete. Another state could say 2 years. If a state does not have such a statute a court will decide its length based upon what is reasonable. Your former employer will have to prove that the time period in the non-compete is reasonable. However, anything over your state’s maximum is going to weigh heavily in your favor.
4. The Confidential Information The Employer Is Trying To Protect Is Already Open To The Public:
A majority of business do not get their client lists from private secret sources. Rather most of that information is found from public databases, the internet, search engines, phone books etc. Moreover a lot of information in this technology driven age can be found from many different sources. Thus, an employer who claims they are protecting their business’s secret information is going to have to show the court how valuable the information is, how it can not be found elsewhere, and how it is vital to its health as a company in the competitive market place. Unless you, the employee, has some super secret knowledge or trade secret than this will be hard for the employer to prove the info you have gives their competitors or your new employer an advantage if you were to go elsewhere.
5. Public Health or Safety Would Not Be Served:
This primarily occupations in specialized scientific fields (nurses, doctors, scientists etc.). A shortage of people in this career field or geographic area means that an employer can not enforce a non-compete agreement even if the non-compete would be valid or enforceable otherwise. You can’t restrict one of the five hear surgeons in the area from working at another hospital. That is against the public good, and the courts will not have it. So if your lucky enough to be in such a field it will likely be easier for you to get out of a non-compete agreement.
There are of course, more ways to get out of a non-compete agreement. Each agreement is unique, so if you want to know all the ways to get out of a non-compete agreement you are involved in consult an attorney. In fact, we suggest that if you signed a non-compete, it is likely valid, and we encourage you in the future not to sign it until they either have it looked over by an attorney with a trained eye or understand that they will be bound by the clauses in the agreement. Employers who try to enforce a non-compete agreement and end up losing in court will likely pay your attorney and court fees as well as damages. We thought you would like to know that just in case you decided to challenge a non-compete. You should also know that before you leave your position you should have an attorney check out your non-compete so that you know everything you may have to adhere to, to determine its length, what states its valid in etc.