Non-Compete document

[MRM]

The new employer doesn't know the employee has a non-compete until the old emplyer tells them. The old employer can and will follow the employe and will tell the new or potential employer about the non-compete. If the employee is already hired when the old employer finds out about it, they will threaten to sue the new employer if they don't fire the employee. I know it happens and I know how it works because I've seen it done. Not telling an employer about a non-compete is a firing offence.

It is a rare company that won't jetison an applicant or new employee when an old employer asserts a non-compete whether it was worth the paper it was written on or not. They don't care whether they'll win the fight or not, they don't want the litigation. The non-compete doesn't have to be enforcable to keep you out of work. You need one that is written by an expert that gives you the protection you need.

[Rick Lee]

Well, I wouldn't lie to a prospective employer about having a non-compete. If I were looking to go to a competitor, I'd still be upfront about it. Chances are they'll say, "have a nice life and good luck," or they'll defend it and insist the previous employer's non-compete is unenforceable.

We're going through this now with a recent hire. We didn't ask and she didn't tell, even though she came from a competitor. (I wasn't involved in this hiring.) But once the former employer got wind of it, they sent a letter and our company is defending her. Our reasooning is that she was barely above an intern at the previous company, is a recent college grad, was phone-only and can't possibly have much industry knowledge or inside company intel.

[greglepore]

Don't for a second believe that they're unenforceable. They are in many/most states, if it is accompanied by separate consideration-ie not just continued employment under the same terms, but as part of a promotion etc. They also have to be reasonable is scope, which can be very industry specific.

If you're concerned, get local counsel's advice. Don't just assume anything.

MRM is correct, your new employer is likely to be concerned regardless.

[RANDY P]

I got hit with a lawsuit for one years back, cost me $$$ to get to the point it was non-enforceable in WA state. That was the biggest annoyance was the money to the lawyer and the explanation to the employer about what was going on.

rjp

[Tobra]

You need a lawyer to read it. I had one read the non-compete from the shady MFer I worked for in Texas. Said, "Go ahead and sign it, totally non-enforceable, who wrote that thing, a first year law student?" Written by aforementioned MFer's wife.

[cstreit]

No competes are not really enforced because a company cant ask you to sign something that waives your right to make a living. You cant sign your rights away.

That said if you move to a competitor without reason, it could be more difficult. If they demote you, you are perfectly justified moving to another job you are qualified to do in an industry you specialize in.

[MRM]

Of course you can sign something that waives your rights to earn a living, or anything else. That's what contracts are. If someone signs a non compete I wrote, you bet it would be enforceable. And if my client directed me to enforce it, the former employee wouldn't draw a paycheck in the industry until the contract expired. And the new employer would pay my fees.

I've been on both sides of noncompetes. They are not to be trifled with. Get a lawyer who works for you to protect your interests. An ounce of prevention will be worth a pound of cure.