How Do I Find a New Job If I Have a Non-Compete Agreement With My Current Employer?
The first thing to do—and I know this seems obvious—is to read the non-compete agreement. The key things to look for are the duration of the limitation, the geographic scope identified, and the manner in which competition is defined. If, for example, you are looking for a job in another state or country, the non-compete may not be of consequence. You should also look at what type of competitive behavior is prohibited. Should you be seeking a new type of role, you might not be affected by the non-compete agreement. Or, the non-compete may specify certain named, prohibited competitors, but not limit you with regard to others. Alternatively, if the non-compete seeks to prohibit you from working in an industry which is a possible competitor, but not an actual competitor of your employer, such a restriction may not be enforceable. The broader the non-compete agreement, i.e. the longer its duraction, the more ground covered by its geographic scope and the more business covered by its definition of “competition” the less enforceable the non-compete agreement.
I WORK IN THE FINANCIAL INDUSTRY, DOES THE PROTOCOL FOR BROKER RECRUITING APPLY TO ME?
It may. About fifteen years ago, certain companies established the Protocol for Broker Recruiting (the “Protocol”) in an effort to minimize litigation surrounding the privacy of client data.[1] Under the terms of the Protocol, signatories agreed they would not enforce restrictive covenants (such as non-compete agreements) amongst one another as long as the departing employees follow certain guidelines with regard to the client information they take and the manner in which they use that information with a new employer.[2] So, if you don’t already know, you may want to see if your current employer and prospective employers are among the nearly 1,900 which participate in the Protocol.[3] A couple of high-profile companies have withdrawn in the past couple years,[4] so you will need to pay careful attention to confirm whether your current employer is party to the Protocol.
I HAVE READ MY NON-COMPETE AGREEMENT, AND IT LOOKS LIKE IT LIMITS ME FROM SEEKING THE TYPE OF JOB I’D LIKE, AM I STUCK?
Not all non-compete agreements can be enforced as written and not all employers will take the time, money, effort or risk required to litigate non-compete agreements. Although it is no guarantee, the actions your current employer may, or may not, have taken against other employees who left can provide you with some insight about what your employer’s preferred approach is.
THE MOST IMPORTANT QUESTION IS NOT WHETHER OR NOT YOU BREACH YOUR AGREEMENT, BUT WHETHER OR NOT YOUR EMPLOYER WILL SUE YOU FOR THE BREACH. THIS WILL FACTOR IN HOW MUCH HARM YOUR BREACH CAUSES THE COMPANY – THE LESS HARM, THE LESS LIKELIHOOD OF A LAWSUIT.
Given all of these variables, you likely still have questions. In most circumstances, we can review your relevant documents and assess your situation for a flat fee to let you know where you stand. If you would like to discuss your situation with us, please feel free to call or e-mail us at any time. You will be on the phone with an attorney within 24 hours.