Non-compete agreements * BE NOT AFRAID

As a niche recruiter who works within a very tightly wound industry where “everybody knows everybody”, I run into non-compete agreements on a daily basis.

Lots of people that I connect with tell me they are “not interested, not looking, content where they are” only because they’ve got a non-compete in place…otherwise brilliant, rational, and high-integrity people would rather wallow in a lesser state of happiness than run the risk of waking the sleeping giant in their employment contract – that little non-compete clause.

As to my credibility in this matter, I was on the pre-pre-law track in college before girls and golf got in the way, but I am not an attorney. I’ve been told I think like an attorney, talk like one when I’m negotiating, and can weave a trap like a trial attorney(are these compliments??), but I am not one.

Nor did I sleep at a Holiday Inn Express last night.

I do however have personal experience with non-competes(I’m still alive, unscathed, and all the more happy for it) as well as countless successful placements with candidates who’ve seen through the smoke and mirrors and decided to ply their trade elsewhere, with a clean conscience and a clean record.

With that said, I’d always advise finding the best(not the nicest or the friendliest per se) attorney – one that a) knows employment law b) has a track record of defending individual employee rights in your state, trial and otherwise.

The second caveat is this, and it’s very simple and rooted in a basic rule that precedes all employment covenants, non-disclosure agreements, employment contracts, and non-competes that have come since then and it’s this…….DO UNTO OTHERS AS YOU WOULD HAVE DONE UNTO YOU.

Rule #1

Don’t steal from your current employer

If you have intentions to do so out of spite or what you perceive as mistreatment, then you deserve to be penalized to the full extent of whatever the employment agreement dictates, and then some. Talk to a therapist, a counselor, a trusted advisor, a recruiter you trust and make sure that you’ve either compartmentalized your discontent for your current employer or rid yourself of the poison; individuals that make decisions based on bettering themselves or “attaining gain” are almost universally more successful than “running from pain”, joining a new employer only because “it’s better than the hell hole I was at before”.  Spite is a great motivator at times but it poisons your decision making process.  Rid yourself of the poison first.

Rule #2

Don’t share information about clients, products, process technology, prototypes, pipeline detail with prospective employers, prospective peers, or anyone who can use that for gain(financial or otherwise) at the expense of your current employer.

If you do so, and many of us do so to make ourselves look better in the eyes of our friends, peers, hiring managers, etc., you are violating most agreements and most importantly, the spirit of any employment contract.  SPIRIT is important because that’s what a judge is going to consider when it renders a verdict.

Any new employer that asks, insinuates, expects, or creates a condition of your employment based on your “book of business”, knowledge of your past employer’s “inner workings” is as guilty as you are and should throw up an immediate red flag to you.  A relationship that starts off on this foot is destined for bad karma and bad outcomes.

Rule #3

Don’t do anything to your past employer(or soon to be past employer) out of spite – don’t talk poorly, don’t take customer lists; in short, don’t be mean, spiteful, vindictive, sneaky, manipulative, or vengeful.

Check yourself now and throughout the process – your feelings and emotions will ebb and flow, but it doesn’t have to impact your actions.

HERE’S WHAT I SUGGEST YOU DO

Living and working in the United States allows for individuals to pursue their own happiness….for whatever reason….in most any context….as long as it’s not hurtful to anyone else or most anything, including a business.  Trade secrets and customers belong to the owners of the company, not you the employee.  That’s a hard pill to swallow, but if you do anything to cause financial harm by impacting your former employer’s ability to make money with these companies or technology or IP, you’ve put yourself square in the eye’s of the bullseye.

If you want to leave your employer, you can…..as long as you do nothing to injure, slander or cause financial loss to your current employer.

Moving forward, your “marketability” to other companies is directly tied to a) your expertise gleaned over your entire career and education b) your industry, product, and technical expertise gleaned over your career AND your personal time and c) your compensation history – the combination of a), b), and c) defines your marketability.

IS THERE AN EASIER, SOFTER WAY?

The companies that will value YOU the most(and reward you the most) are the ones where you can step in and “hit the ground running” – the least amount of ramp-up, the easiest transition based on any number of factors, NONE OF WHICH INCLUDE YOU DISHING ON YOUR FORMER EMPLOYER!

To those who look for the easier, kinder, non-confrontational path to getting around a non-compete, I often hear “what about if I step outside the industry?” To do that is to a) reduce your marketability b) reduce your market value and c) reduce your financial contribution to your family, your goals, your retirement, etc. – this “path of least resistance” will typically hurt your career….hence why many just sit and wallow rather than take control of their career.

Individual rights within the US were not built on punishing those that achieve a different personal happiness, and that’s at the crux of this issue. You spend a lifetime building up equity in yourself…by osmosis, educational investment, on the job training….and as long as you’re not injuring an employer or stealing what’s not yours, you have the right to “cash in” on this investment, on your terms.

So play your career search out – use a recruiter who’ll maintain discretion and help you navigate the waters. Engage an attorney – preface any dialogue with the condition that you won’t do anything to cause financial loss, slander, or harm to your current employer, and play it out. Stop using that little clause as an excuse.

Here’s what happens……you may get threatened, you may have an icy exit interview, your current boss may not like your explanation on why you’re leaving, you may receive a letter from a corporate attorney, you may be asked to sign an affidavit saying you agree to do what you’ve already agreed to do in your non-compete, and you may be looked at with contempt by those you left behind(contempt or jealousy or respect, whatever….), but in the end, if handled appropriately, you’ll be able to live and work happily ever after.

In some circumstances, not all and not that many, some addendum may be agreed to that limits interaction with a particular client or product, but all that I’ve seen are negotiable and typically whittled down from what was originally required in the original agreement. Again, as long as you don’t intend nor create direct financial harm to a past employer, and conduct yourself accordingly….you’re practicing high character, equitable, and respectful behavior.

There’s more to say and there’s always an exception, but the main take-away is to not allow this type of agreement to stop you from looking and considering a change – you owe it to yourself. Every employer I’ve worked with and fought against has said a similar thing(I say it too with my staff) – “I want to protect what we’ve worked so hard to build”. So do that – allow everyone, even your previous employer, to pursue and protect their business and everything THEY built up, and move on. As long as you stay clear of doing anything that directly harms that, I encourage you to pursue your career dreams with conviction and a clear conscience.

 

 

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