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Reaching Compromises to Escape a Non-Compete Agreement

 

Non-compete agreements have become fairly common, especially for those working in the technology field. Many companies are afraid that their employees will leave and take trade secrets and/or customers to their competitors. To prevent this from occurring, most employers require their employees to sign non-compete agreements as a condition of employment. Other times employers will sometimes have an employee sign such an agreement after she has already started working for the company, but in certain states, that requires some sort of additional compensation for the employee, such as a bonus, in order to make it binding. A non-compete agreement usually states that an employee will not work for any of the company’s competitors within a certain time frame after their employment with the company has ended. The time frame is generally for a year or two and there is normally a geographical component as well, most often prohibiting the employee from working for a competitor in the same state or county as the company.

Employees often sign these agreements thinking that they have no choice if they want the job. Or maybe they can’t think of a reason they would leave their current employer to work for a competitor. The latter plan might work out just fine for some people but for others, particularly in this economy, all it takes is a downsizing and suddenly these happy employees find themselves without a job and working for a competitor may be their only option.

While more and more courts lately have been siding with the defendants in lawsuits regarding non-compete agreements, many employees are still hesitant to leave their current employer. The idea of a lawsuit can be intimidating, especially knowing that lawsuits can be expensive and the company has much greater resources at their disposal than the employee to devote to fighting a legal battle. It’s also a sensitive area because, when a non-compete agreement is violated, the new employer is often also listed as a defendant. An employee trying to find work will not want to get their new employer in trouble. At the very least, the prospect of getting sued will make them a less desirable candidate to the new employer.

There are ways around these non-compete agreements and discussing options with a non-compete attorney is a great place to start. Many non-compete attorneys will tell you that the first step is always to talk to the current or former employer to see if they can adjust the non-compete agreement to create narrower definitions. Ideally, the result would still protect the employer while giving the employee the freedom she needs to make a living. Many companies aren’t even aware of how their own non-compete agreements are drafted. All they know is that they don’t want their employees to up and leave and take a bunch of the company’s hard-won customers or confidential information with them.

The non-compete agreement is supposed to prevent that but sometimes the agreement has been broadened to a point where it makes it almost impossible for the employee to find work. When working with a company that is at all reasonable, finding a middle ground is may be possible, sometimes with the help of an attorney to assist you. In any case, when trying to get around a non-compete agreement, it is better to be proactive by discussing it with your current or former employer before making a commitment to the new employer. You can also retain an attorney to review the agreement to determine if it is enforceable as sometimes it may be drafted too broadly or there may be a lack of adequate compensation rendering the agreement unenforceable.


The business litigation attorneys at DiTommaso Lubin represent employees, executives, employers, business owners and professionals such as doctors, dentists, lawyers and accountants regarding non-competition agreements and other claims throughout the Chicagoland area, including Cook, DuPage, Lake, Kane, McHenry and Will Counties; and in the Mid-West region, including Indiana, Wisconsin and Iowa.