4 ms·
Two basic strategies apply: (1) Sign the ridiculous agreement, knowing it is completely unenforceable, and plan to completely ignore it when you leave. If you
by scott00 12y ago
Two basic strategies apply:
(1) Sign the ridiculous agreement, knowing it is completely unenforceable, and plan to completely ignore it when you leave. If you consider this strategy, you MUST consult with a lawyer to confirm that it is unenforceable, and you MUST be willing to pay a lawyer after you leave to deal with the nasty letter they may send you and your next employer. Ask the lawyer how much that might cost, and build it into your compensation expectations. Also, be aware that even if you know it is unenforceable, the nasty letter may scare your next employer into revoking your offer, so be prepared to be upfront about your situation with the next employer, and consequently to expect it to take longer to find the next job. Build that into your compensation expectations for this job as well.
(2) Negotiate an agreement you're actually willing to follow to the letter. Personally, I wouldn't agree to anything that doesn't compensate me for time sitting out, and I wouldn't care much what the restrictions are during the time period. I would be looking for at least 75% of total comp for periods up to 3 months, 100% of total comp for periods up to 6 months, and 120% of total comp for periods longer than 6 months.
IMO option 2 is the far better choice, if at all possible. Two factors would make me consider option 1. If the company is a large or inflexible organization, where you can't negotiate with a person who actually has the power to change the agreement, option 2 might not be realistic. Second, you should try to find out if the company actually has a habit of sending nasty letters to people who leave. If they actually do that, then I would guess they already know that it's unenforceable, but don't care because it's still an effective way of bullying people. I would take this as evidence that they would not be amenable to negotiating the non-compete, and go with option 1.
- andyjdavis 12y ago>Also, be aware that even if you know it is unenforceable, the nasty letter may scare your next employer I am curious about this part. Why would the next employer even care, given that they are not party to any agreement made between the individual and their previous employer?
- minimax 12y agoMaybe the next employer doesn't have a full time lawyer or doesn't think it's worth the hassle. Or they don't want to hire someone who is going to have to quit in a month because they decide the contract is enforceable. For what it's worth, I have seen it play out in the exact opposite way. I was working at a company that took great pride in having the best engineering talent and also happened to have a very good (very expensive) in-house counsel. We hired a crop of engineers away from another company and subsequently got a nastygram from the previous company about hiring the guys. If anything, it convinced the management that they made the right decision to hire the guys, and they put the in-house counsel to work shredding the previous company's legal arguments. It was pretty fun to watch.
- indymike 12y agoInterfering with a contract is a tort. If my company hires you, and you have a non-compete, the previous employer can sue my company. It doesn't matter if the contract is legal or not, my company will have to pony up to defend the lawsuit. http://www.legalmatch.com/law-library/article/wrongful-or-tortious-interference-with-contracts.html http://www.legalmatch.com/law-library/article/wrongful-or-to...
- Silhouette 12y agoAlthough in that case, if the NCA was unenforceable, a lawyer might also have fun reversing that principle and claiming tortious interference with the business relationship between the employee and the new employer/prospective employer by the former employer...