Noncompete in a Right to Work State. (1 Viewer)

[chubby]

I've been working for a management company for the better part of twenty years, primarily dedicated to one facility. It's their flagship operation, and is a large--maybe disproportionate part of their bottom line. As part of my responsibilities I oversee contracts, including theirs, so I'm privy to some information which is not always so pretty. I have a signed, two year noncompete with them following any termination of our employment relationship, which they have tried in past years to word in a way that it includes any of their business interests, prospective business interests, potential business interests, related business interests, ad infinatum...

This noncompete is also attached in some way to their contract with the company. My guess is that it is to prevent the company from directly hiring me for that same time frame, and 'thinking out loud' here I'll have to see about confirming that. I have not seen it, but understand that in the last contract renewal they tried to make that a lifetime noncompete but the company lawyers caught that and nixed it.

For the first time in the history of this relationship this contract is going out to bid. New administration, covering all bases--ALL service contracts are going out to bid.

This is a high end, all inclusive, full service, high priced management service. It's a high profile and valued customer. With cost becoming a more major consideration everywhere, I can easily see them losing the contract to a moderate bid. I did the same thing some years ago when we changed janitorial companies, and simply accepted the reduced level of services in order to get a reduced cost. We actually did encourage the new company to retain a couple of their employees at that time.

I'm trying to confirm something I've heard, and in order for it to be true can't really ask anyone I work with. North Carolina is a 'Right to Work' State. I take that to mean that an employee can't be denied the ability to work in their field if there's no other way to support themselves. I'm actually sending out resumes now, looking for related work in anticipation of my worst fears--but my entire direct experience in this field is in this particular job, and while my references are outstanding my options have proven to be limited at best.

I can see one scenario where this all comes into play: My company loses the contract to one I'm not familiar with. That company seeks me out unsolicited.

My company actually did this exact thing about 19 years ago when taking over another facility--they hired the two employees who had been maintaining it. I don't know of any noncompetes then, though.

My take on the "Right to Work" concept is that if there's pretty much nowhere else I can go, I can't be denied the opportunity to make a living at what I do best. Is this true under these circumstances? Losing this job at this time would be a personal disaster for my family.

Any local lawyers here in this field? I might need one on short notice...I believe my current company would sue. :(

 

[Kool-Aid Larry]

I've been working for a management company for the better part of twenty years, primarily dedicated to one facility. It's their flagship operation, and is a large--maybe disproportionate part of their bottom line. As part of my responsibilities I oversee contracts, including theirs, so I'm privy to some information which is not always so pretty. I have a signed, two year noncompete with them following any termination of our employment relationship, which they have tried in past years to word in a way that it includes any of their business interests, prospective business interests, potential business interests, related business interests, ad infinatum...

This noncompete is also attached in some way to their contract with the company. My guess is that it is to prevent the company from directly hiring me for that same time frame, and 'thinking out loud' here I'll have to see about confirming that. I have not seen it, but understand that in the last contract renewal they tried to make that a lifetime noncompete but the company lawyers caught that and nixed it.

For the first time in the history of this relationship this contract is going out to bid. New administration, covering all bases--ALL service contracts are going out to bid.

This is a high end, all inclusive, full service, high priced management service. It's a high profile and valued customer. With cost becoming a more major consideration everywhere, I can easily see them losing the contract to a moderate bid. I did the same thing some years ago when we changed janitorial companies, and simply accepted the reduced level of services in order to get a reduced cost. We actually did encourage the new company to retain a couple of their employees at that time.

I'm trying to confirm something I've heard, and in order for it to be true can't really ask anyone I work with. North Carolina is a 'Right to Work' State. I take that to mean that an employee can't be denied the ability to work in their field if there's no other way to support themselves. I'm actually sending out resumes now, looking for related work in anticipation of my worst fears--but my entire direct experience in this field is in this particular job, and while my references are outstanding my options have proven to be limited at best.

I can see one scenario where this all comes into play: My company loses the contract to one I'm not familiar with. That company seeks me out unsolicited.

My company actually did this exact thing about 19 years ago when taking over another facility--they hired the two employees who had been maintaining it. I don't know of any noncompetes then, though.

My take on the "Right to Work" concept is that if there's pretty much nowhere else I can go, I can't be denied the opportunity to make a living at what I do best. Is this true under these circumstances? Losing this job at this time would be a personal disaster for my family.

Any local lawyers here in this field? I might need one on short notice...I believe my current company would sue. :(

did you just make that up -- I thought it had to do with unions?

 

[chubby]

My take on the "Right to Work" concept is that if there's pretty much nowhere else I can go, I can't be denied the opportunity to make a living at what I do best. Is this true under these circumstances? Losing this job at this time would be a personal disaster for my family.

did you just make that up -- I thought it had to do with unions?

No, but it's hearsay--convincing, but still hearsay. Nothing to do with unions that I know of.

 

[Kool-Aid Larry]

do you have access to the internet?

 

[NCCommish]

I have signed and then ignored non-competes more than once here. I have seen many others do the same. My company doesn't even bother with them because they are too hard to enforce. As part of the bargain to prevent evil unions non-competes are pretty hard to enforce here because you have to be allowed to work in your field. Not saying they can't take you to court if they want and tie you up for a while. Just saying I don't see very many do it and I see even less do it and win. Seems to work best in the entertainment industry here not so much regular jobs.

 

[bigbottom]

Being a right to work state means that you cannot be forced to join a union as a condition of employment.

 

[bigbottom]

I've sued and successfully enforced noncompetes many times. I've also defended against their enforcement and broken them or had their terms significantly modified. Non-competes and their enforceability are a creature of state law. I've researched and litigated the issue in many states, but North Carolina is not one of them, so I'll defer to those who practice there. What I can say is that it's pretty common for folks to say they aren't enforceable in jurisdictions where they are. It's just that companies many times choose not to go through the headache and expense of enforcing them.

 

[bigbottom]

This is an industry specific paper, but it does appear to provide an overview of the requirements for an enforceable non-compete in North Carolina.

http://www.smithlaw.com/publications/when%20is%20an%20agreement%20not%20an%20agreement.pdf

I can see a number or potential avenues for attacking the enforceability of the agreement.

 

[Genedoc]

This is an industry specific paper, but it does appear to provide an overview of the requirements for an enforceable non-compete in North Carolina. http://www.smithlaw.com/publications/when%20is%20an%20agreement%20not%20an%20agreement.pdfI can see a number or potential avenues for attacking the enforceability of the agreement.

That is my father in law's law firm. Most relevant sentence in the PDF...there is no substitute for obtaining legal counsel when confronted with the need to draft, evaluate or enforce a non-compete agreement.

 

[bigbottom]

This is an industry specific paper, but it does appear to provide an overview of the requirements for an enforceable non-compete in North Carolina. http://www.smithlaw.com/publications/when%20is%20an%20agreement%20not%20an%20agreement.pdfI can see a number or potential avenues for attacking the enforceability of the agreement.

That is my father in law's law firm. Most relevant sentence in the PDF...there is no substitute for obtaining legal counsel when confronted with the need to draft, evaluate or enforce a non-compete agreement.

Absolutely. It's my bread and butter.

 

[CletiusMaximus]

In my experience, enforcing a non-compete is expensive and often has very limited pay-off in the end even if you win (depending on the industry). My company is a professional service provider, and we have people coming and going all the time so have constant ongoing issues with our competitors. Generally speaking, I think it is better to focus our efforts at competing in the market rather than in the courts. For a departing employee, my main advice would be to make sure your new employer is aware of your agreement, get a down/dirty opinion on enforceability from a lawyer who is familiar with the current state law on non-competes and -- above all -- be aware of trade secret laws. Courts seem to be much more willing to enforce trade secret laws than non-competes. If you are not aware of the law on trade secrets, you will almost certainly violate them when you leave, by taking stuff with you. If your old employer is inclined, they can make your life pretty miserable if you give them an opportunity to do so by messing with your computer before you leave (deleting stuff, using personal usb's, emailing to personal accounts, downloading/printing client lists, etc.)

 

[bigbottom]

In my experience, enforcing a non-compete is expensive and often has very limited pay-off in the end even if you win (depending on the industry). My company is a professional service provider, and we have people coming and going all the time so have constant ongoing issues with our competitors. Generally speaking, I think it is better to focus our efforts at competing in the market rather than in the courts. For a departing employee, my main advice would be to make sure your new employer is aware of your agreement, get a down/dirty opinion on enforceability from a lawyer who is familiar with the current state law on non-competes and -- above all -- be aware of trade secret laws. Courts seem to be much more willing to enforce trade secret laws than non-competes. If you are not aware of the law on trade secrets, you will almost certainly violate them when you leave, by taking stuff with you. If your old employer is inclined, they can make your life pretty miserable if you give them an opportunity to do so by messing with your computer before you leave (deleting stuff, using personal usb's, emailing to personal accounts, downloading/printing client lists, etc.)

Money spent in the market is often more effective than money spent in litigation. Still, I have a number of clients who draft their agreements narrowly, require them to be signed by a limited class of employees, and then prosecute enforcement consistently. One of the primary reasons they are consistent on enforcement, even when the particular employee isn't worth the time and money involved in the fight, is because inconsistency makes it more difficult to enforce in those instances when it matters. In most jurisdictions, the employer must prove that they have a legitimate business interest for having the non-compete, such as protecting their trade secret or proprietary information. Simply restraining competition is an improper justification. One of the first things I do when I am trying to bust a non-compete is find out which classes of employees are required to sign a non-compete and then discover all the instances when the company allowed a departing employee to go to a competitor without suing to enforce the non-compete. If a company picks and chooses when to enforce its non-competes within the same class of employees, it becomes exceedingly difficult for them to prove a legitimate business justification, rather than they just don't want particular individuals going to the competition.

 

[Idiot Boxer]

I've been working for a management company for the better part of twenty years, primarily dedicated to one facility. It's their flagship operation, and is a large--maybe disproportionate part of their bottom line. As part of my responsibilities I oversee contracts, including theirs, so I'm privy to some information which is not always so pretty. I have a signed, two year noncompete with them following any termination of our employment relationship, which they have tried in past years to word in a way that it includes any of their business interests, prospective business interests, potential business interests, related business interests, ad infinatum...

This noncompete is also attached in some way to their contract with the company. My guess is that it is to prevent the company from directly hiring me for that same time frame, and 'thinking out loud' here I'll have to see about confirming that. I have not seen it, but understand that in the last contract renewal they tried to make that a lifetime noncompete but the company lawyers caught that and nixed it.

For the first time in the history of this relationship this contract is going out to bid. New administration, covering all bases--ALL service contracts are going out to bid.

This is a high end, all inclusive, full service, high priced management service. It's a high profile and valued customer. With cost becoming a more major consideration everywhere, I can easily see them losing the contract to a moderate bid. I did the same thing some years ago when we changed janitorial companies, and simply accepted the reduced level of services in order to get a reduced cost. We actually did encourage the new company to retain a couple of their employees at that time.

I'm trying to confirm something I've heard, and in order for it to be true can't really ask anyone I work with. North Carolina is a 'Right to Work' State. I take that to mean that an employee can't be denied the ability to work in their field if there's no other way to support themselves. I'm actually sending out resumes now, looking for related work in anticipation of my worst fears--but my entire direct experience in this field is in this particular job, and while my references are outstanding my options have proven to be limited at best.

I can see one scenario where this all comes into play: My company loses the contract to one I'm not familiar with. That company seeks me out unsolicited.

My company actually did this exact thing about 19 years ago when taking over another facility--they hired the two employees who had been maintaining it. I don't know of any noncompetes then, though.

My take on the "Right to Work" concept is that if there's pretty much nowhere else I can go, I can't be denied the opportunity to make a living at what I do best. Is this true under these circumstances? Losing this job at this time would be a personal disaster for my family.

Any local lawyers here in this field? I might need one on short notice...I believe my current company would sue. :(

I'm not in private practice, but I am here in NC. What bigbottom says about the meaning of "Right to Work" is spot on.

I do think your non-compete can be attacked on a number of grounds. Two years seems like it is too long. The scope of employment it purports to protect is overbroad. I think they have (and have continued to try) to overreach with the application of their non-compete and that ultimately may be their undoing.

As to whether or not they sue to enforce it, I have found in NC that it is expensive and not always a winning proposition to try to enforce, so they'd make the decision based largely upon how much competition they perceive you would be to them. If you went to a direct competitor or the major client, then yes, they'd probably sue. If you went to a tangentially related business, probably not.

What city are you located in? If you need an attorney I might be able to hook you up with someone as I know a few.

 

[Ramsay Hunt Experience]

This isn't my bread and butter, and I certainly defer to Biggy and Cletius. It's also hard to evaluate a claim based on a future scenario that may or may not arise.

Are you worried that the company will enforce a non-compete against it's employees if it loses the contract? That seems unlikely. Not so much from a legal perspective (although it seems to raise issues), but from a business standpoint, it makes little sense.

The more likely scenario is that the non-compete would be enforced against you if you prospectively moved to a competitor looking to make a bid on the contract. And my general sense is that in any jurisdictions where non-competes are enforced at all, they're likely enforced in that scenario. That's pretty much the hornbook example of a valid non-compete clause.

 

[chubby]

This isn't my bread and butter, and I certainly defer to Biggy and Cletius. It's also hard to evaluate a claim based on a future scenario that may or may not arise.

Are you worried that the company will enforce a non-compete against it's employees if it loses the contract? That seems unlikely. Not so much from a legal perspective (although it seems to raise issues), but from a business standpoint, it makes little sense.

The more likely scenario is that the non-compete would be enforced against you if you prospectively moved to a competitor looking to make a bid on the contract. And my general sense is that in any jurisdictions where non-competes are enforced at all, they're likely enforced in that scenario. That's pretty much the hornbook example of a valid non-compete clause.

Thanks to all, and sorry I haven't been able to monitor this through the day. The bolded question here pretty much defines my concern. It's a no brainer for the client to encourage a new company to look at bringing me on board since I have established most of the standards and procedures over the past 18 years, and I adopted this alias to ensure that nobody could suggest that I am trying to influence anyone involved in the bid process. I honestly don't know how my present employer would react if they lose this flagship account. I'm also not convinced that a move would not be an improvement for my own sorry lot. I'll get back to this later at least. Thanks for the comments and definitions.

 

[chubby]

As to whether or not they sue to enforce it, I have found in NC that it is expensive and not always a winning proposition to try to enforce, so they'd make the decision based largely upon how much competition they perceive you would be to them. If you went to a direct competitor or the major client, then yes, they'd probably sue. If you went to a tangentially related business, probably not.

What city are you located in? If you need an attorney I might be able to hook you up with someone as I know a few.

All of the comments are appreciated and enlightening. I see where I don't understand the "right to work" concept, and maybe the non compete is somewhat irrelevant too. What I am looking at is a situation where the building which I manage is putting that management contract out to bid. My company has been there 21 years of which I've been almost 18, after having worked with both parties under different capacities and at different times for years prior. I've been dedicated to this building for this time, with infrequent emergency support for any other of my company's management sites.Should my company win the bid then it will be in large part due to my service and their support, and I will remain, whether differences or not. I get good benefits, and wish for better salary.

Should my company lose the bid then they may try to keep me on--but not only am I substantially uninvolved with their other operations but this contract also subsidizes other operations already as far as I know. Carrying me just to keep me off the market would be a loss, and I think unsubstainable.

Should my company lose the bid and we part ways* then it seems unfathomable that the new management firm would not want to keep me on board, and that would be the preference of the client without a doubt.

*The manner of parting ways would be the wrinkle. It seems obvious that they can't support me without this contract, but if they force me to quit in order to accept an offer from the bid winning contractor then it would seem to be in violation of the non compete--true? They could claim that I had something to do with the changeover whether true or not.

My ideal would be to stay in my present capacity, under whatever umbrella, until such a time in a few years when I would hope to be able to look at replacing the retiring director who oversees this contract on behalf of the client. It would not be a position which is in play with my employer, though leaving my employer to work directly for the client could be considered to be in conflict, I imagine. Thoughts?

Again, thanks for the feedback. I've got to minimize lest it be found to be an influencing factor in any way.

 

[chubby]

UPDATE: I've been let go. April 30. My management company has been gradually downsizing over the past several years and we were down to three in the field, and one Super mostly managing the contracts and we three. I was the most experienced and also the least 'flexible', being primarily dedicated to one account--I believe their only remaining full service account, 1 1/2 men. It was a fair exit interview, and then I was escorted out of the building. I was required to recognize the original 19 year old noncompete agreement in order to receive severance and after about 10 days penned a gracious letter of acceptance. I told them how much I'd appreciated our working relationship for 20-some years, both as employee and prior contracts through their end users. During both the exit interview and in the letter I suggested that there are complementary positions whereby we might work together again that should not be considered a compete--and actually made an example of a liaison position which absolutely gave them pause.

I have been told that there have been issues with many of the older noncompetes in N.C. for being too general and suspect that was one reason I was asked to readdress our original one. Looking at the list of companies they included I can see that most of them are not in their control--maybe they put in bids, maybe they were once involved but no longer, maybe they were never more than just prospects. When I called another past employee who actually took them to court he said that if they were not under contract with a company and it was only a prospect then the non compete was unenforceable--is this true? It makes sense especially when some on their list are obviously just targets.

I have questions regarding two potential situations though which are specific:

1. My old company is a contractor providing full service facilities management for the building I was involved with. There is an in-house employee who is involved with overseeing this account, drawing up annual and life cycle budgets, building enhancements, procurement, and oversight on behalf of the owner. I reported to him daily, prior to that I reported to Finance, or to Administrative Services at different times. I told them that if this position ever came open I would not consider it to be a compete--since there has always been such a liaison between my company and the building owners. True? Their expression when I mentioned it suggested that it was.

This would not affect their contract at all--assuming they win it. I understand it is going out to bid now--not necessarily related to my termination. Would it make a difference for my taking this position if they lose the contract?

2. I have recently learned that there is a company listed on their noncompete which may also have an opening develop and might look for my services in a salaried position. This is a business for whom my old firm had tried to establish full management services for years--and instead the company maintained routine maintenance tasks in-house while contracting my old firm on a per-project basis. I had my own personal and professional relationship with them. That position may become available.

All comments appreciated!

 

[Judge Smails]

Sorry to hear man. I live in CA and pretty much pay no attention to non-competes. I'll defer to the attorneys, but I would think that if they let you go they are not going to worry about a non-compete, especially in a right to work state. Good luck.

 

[bigbottom]

UPDATE: I've been let go. April 30. My management company has been gradually downsizing over the past several years and we were down to three in the field, and one Super mostly managing the contracts and we three. I was the most experienced and also the least 'flexible', being primarily dedicated to one account--I believe their only remaining full service account, 1 1/2 men. It was a fair exit interview, and then I was escorted out of the building. I was required to recognize the original 19 year old noncompete agreement in order to receive severance and after about 10 days penned a gracious letter of acceptance. I told them how much I'd appreciated our working relationship for 20-some years, both as employee and prior contracts through their end users. During both the exit interview and in the letter I suggested that there are complementary positions whereby we might work together again that should not be considered a compete--and actually made an example of a liaison position which absolutely gave them pause.

I have been told that there have been issues with many of the older noncompetes in N.C. for being too general and suspect that was one reason I was asked to readdress our original one. Looking at the list of companies they included I can see that most of them are not in their control--maybe they put in bids, maybe they were once involved but no longer, maybe they were never more than just prospects. When I called another past employee who actually took them to court he said that if they were not under contract with a company and it was only a prospect then the non compete was unenforceable--is this true? It makes sense especially when some on their list are obviously just targets.

I have questions regarding two potential situations though which are specific:

1. My old company is a contractor providing full service facilities management for the building I was involved with. There is an in-house employee who is involved with overseeing this account, drawing up annual and life cycle budgets, building enhancements, procurement, and oversight on behalf of the owner. I reported to him daily, prior to that I reported to Finance, or to Administrative Services at different times. I told them that if this position ever came open I would not consider it to be a compete--since there has always been such a liaison between my company and the building owners. True? Their expression when I mentioned it suggested that it was.

This would not affect their contract at all--assuming they win it. I understand it is going out to bid now--not necessarily related to my termination. Would it make a difference for my taking this position if they lose the contract?

2. I have recently learned that there is a company listed on their noncompete which may also have an opening develop and might look for my services in a salaried position. This is a business for whom my old firm had tried to establish full management services for years--and instead the company maintained routine maintenance tasks in-house while contracting my old firm on a per-project basis. I had my own personal and professional relationship with them. That position may become available.

All comments appreciated!

Sorry to hear the bad news. Regarding your first paragraph, how are you being paid your severance (how many weeks/months and in a lump sum or over time).

On the second paragraph, that sounds like a non-solicitation of customers restriction (i.e., you are prohibited from soliciting the business of certain current and prospective customers) rather than a non-compete (prohibiting you from working in the industry within a certain limited geographic area). Is that the case?

 

[bigbottom]

Sorry to hear man. I live in CA and pretty much pay no attention to non-competes. I'll defer to the attorneys, but I would think that if they let you go they are not going to worry about a non-compete, especially in a right to work state. Good luck.

Employment-based non-competes are unenforceable in California. In fact, companies can get in trouble for trying to enforce them there. So yeah, feel free to ignore them so long as you are living and working exclusively in California. Also, as noted upthread, being a right to work state has nothing to do with non-competes.

 

[chubby]

Sorry to hear the bad news. Regarding your first paragraph, how are you being paid your severance (how many weeks/months and in a lump sum or over time).

On the second paragraph, that sounds like a non-solicitation of customers restriction (i.e., you are prohibited from soliciting the business of certain current and prospective customers) rather than a non-compete (prohibiting you from working in the industry within a certain limited geographic area). Is that the case?

That sounds right, and based on the earlier definition of 'right to work' state I tried to edit the title and failed. I'm trying to get used to a new computer here because mine went down the day of the dismissal. sheeeesh.

I am definitely not prohibited from working in facilities. They are protective of their particular management programs, but I don't think they are trying to stop me from working in my trade--indeed, I was in a parallel trade when we first met. I think the gist is that they feel like they put me in the position to engage their contacts and develop a relationship which preempts theirs, and that I would have an insiders edge to steal the business. What they may have also tried to do is define any companies which they think may recognize their name as a primary reference that I might be able to use it against them in a bid situation. They are absolutely correct in the first concern, and the company for whom I represented them for so long is entirely up in arms. Some of their other companies also know me as a member of their team, while others would only recognize the name reference and not me.

Meanwhile it seems they have included quite a number of companies which they have solicited at some time without success, in the event an opening comes up again.

Interestingly enough there are companies for whom I might be engaged as the point of contact to manage the facilities management firm which I was working for. One is the building where I was working the past 19 years--and they have a preestablished position doing just that--the liaison I referred to above. That opening depends on how long the current person decides to continue working before retiring.

The other is a firm for whom I solicited business on their behalf for years, and for whom they have since engaged services on a per project basis. This firm rejected their full service facilities management in favor of hiring an in-house maintenance technician--which rumor suggests may become an open position.

I directly mentioned the first position to them during the exit interview and subsequent letter of acceptance. I do not consider it to be in competition with their contracted services--and their reaction suggested that they may agree with that perception. Going out to bid though may be troublesome--as there are "service specific" firms which will look good on paper and beat out their "all inclusive" proposals.

The second position above just came up by chance and may or may not come to fruition. My firm and I have maintained both connected and independent relationships with this company for 19 years, and mine is also a personal relationship.

On another note--there is some history here. A third company under their umbrella has engaged me independently for janitorial services for the past several years, and in the course of doing that I've also provided design and technical support which complemented what my company was contracted to provide. The original was a full service contract as well--but some years ago that was ditched in favor of a partial coverage.

As for severance, I think it's supposed to be lump sum within a week of my letter of acceptance. It's been over a week so I intend to call them soon. We have actually maintained contact--albeit minimal--in order to keep this transition smooth for the end user. I have also visited the site independently on a personal basis.

 

[Johnny Rock]

Get that resume together and start looking for a job. If an offer happens to be from a company that used to get services from your old firm and hiring you will basically fire the old firm, show them the non-compete so they can evaluate the "non-solicitation of customers" section that bigbottom mentioned. Let their legal help you.

Old firm terminated you. No reason to go through scenarios with them back and forth. While I do see that it's good that you showed strength to question interpretation of the agreement, just leave it at that because you should not be relying on old firms advice or facial expressions for how you proceed anyway.

Good luck on the search. Aim high.

 

[chubby]

Get that resume together and start looking for a job. If an offer happens to be from a company that used to get services from your old firm and hiring you will basically fire the old firm, show them the non-compete so they can evaluate the "non-solicitation of customers" section that bigbottom mentioned. Let their legal help you.

Old firm terminated you. No reason to go through scenarios with them back and forth. While I do see that it's good that you showed strength to question interpretation of the agreement, just leave it at that because you should not be relying on old firms advice or facial expressions for how you proceed anyway.

Good luck on the search. Aim high.

Thanks--I guess I'm just anticipating the trouble because when something comes up I'm going for it somehow. Resume is ready and the first folks who asked for it to begin marketing are those in the building where I was working. They are in the business of creating business and have actually found an assignment for someone else years ago until the time was right to bring that person back; I am optimistic on that front but of course won't be comfortable until it happens!

Meanwhile the possibility of a second opening popped up in another site where I've got a lot of history and the need is apparently there. I have always supported them both with contract support and just in a neighborly way, and we've worked together closely for years.

I'm actually optimistic--this entire episode could and should result in a very positive career move. Just gotta be prepared for it.

 

[James Daulton]

A company can let you go and enforce a non-compete agreement? That doesn't make sense to me.

 

[jon_mx]

If they are basically out of the business and have to let you go, it seems asinine that they even care about enforcing a non-compete claus. What d-bags.

 

[bagger]

I love the "prospective customer" language in there, so absurd.

My non-legal advice is as long as you are being reasonable and not overtly or maliciously poaching customers you should be fine.

Also letting your former customers know you have left and letting them know what company you are at without solicitation is a nice subtle way to have them reach out to you.

Phone calls or lunches is probably advisable over emails.

 

[bigbottom]

I love the "prospective customer" language in there, so absurd.

My non-legal advice is as long as you are being reasonable and not overtly or maliciously poaching customers you should be fine.

Also letting your former customers know you have left and letting them know what company you are at without solicitation is a nice subtle way to have them reach out to you.

Phone calls or lunches is probably advisable over emails.

It may or not be considered actionable solicitation, but it's also a good way to get sued if your employer is inclined to make an issue over a whole bunch of clients leaving with you. You may ultimately win the legal battle, but you'll be tied up in litigation in the meantime and your new employer may or may not think you're worth the trouble.

When I'm advising an individual client who is subject to a non-solicit, my typical advice is not to try and be cute/tricky and end up getting sued, even if you may have a technical defense that you weren't actually soliciting, unless you are willing to pay the costs of litigation or the new employer is on board with your approach and has agreed in writing to defend you.

 

[bigbottom]

A company can let you go and enforce a non-compete agreement? That doesn't make sense to me.

Of course. Otherwise it would be exceptionally easy to get out of your non-compete. Just keep missing client meetings and cursing around the workplace until they fire you.

 

[chubby]

I love the "prospective customer" language in there, so absurd.

My non-legal advice is as long as you are being reasonable and not overtly or maliciously poaching customers you should be fine.

Also letting your former customers know you have left and letting them know what company you are at without solicitation is a nice subtle way to have them reach out to you.

Phone calls or lunches is probably advisable over emails.

You really sound like my attitude all the way down. I've been making social calls. Actually had a couple folks come to me with offers--one a career offer that we all assume I will decline, another immediately upon learning I might reopen my old construction business. I believe we left on good terms and everyone has seen that I continue to maintain positive communications. I am still in the business of support services--just looking for a new home.

 

[CletiusMaximus]

I love the "prospective customer" language in there, so absurd.

My non-legal advice is as long as you are being reasonable and not overtly or maliciously poaching customers you should be fine.Also letting your former customers know you have left and letting them know what company you are at without solicitation is a nice subtle way to have them reach out to you.

Phone calls or lunches is probably advisable over emails.

It may or not be considered actionable solicitation, but it's also a good way to get sued if your employer is inclined to make an issue over a whole bunch of clients leaving with you. You may ultimately win the legal battle, but you'll be tied up in litigation in the meantime and your new employer may or may not think you're worth the trouble.

When I'm advising an individual client who is subject to a non-solicit, my typical advice is not to try and be cute/tricky and end up getting sued, even if you may have a technical defense that you weren't actually soliciting, unless you are willing to pay the costs of litigation or the new employer is on board with your approach and has agreed in writing to defend you.

The LinkedIn auto-message seems an interesting development in this area. I was speaking with a friend about this last year who said he advises clients to turn it off, so clients in the employee's LinkedIn contacts won't be auto-notified.

 

[chubby]

I love the "prospective customer" language in there, so absurd.

My non-legal advice is as long as you are being reasonable and not overtly or maliciously poaching customers you should be fine.

Also letting your former customers know you have left and letting them know what company you are at without solicitation is a nice subtle way to have them reach out to you.

Phone calls or lunches is probably advisable over emails.

It may or not be considered actionable solicitation, but it's also a good way to get sued if your employer is inclined to make an issue over a whole bunch of clients leaving with you. You may ultimately win the legal battle, but you'll be tied up in litigation in the meantime and your new employer may or may not think you're worth the trouble.

When I'm advising an individual client who is subject to a non-solicit, my typical advice is not to try and be cute/tricky and end up getting sued, even if you may have a technical defense that you weren't actually soliciting, unless you are willing to pay the costs of litigation or the new employer is on board with your approach and has agreed in writing to defend you.

There is no possible way clients will 'leave with me'. I am not in that scale of business. Even after the two year noncompete if I return to the business it will not be to the scale of the company I was working for--it will still be in association with them if anything.

 

[chubby]

I may have said something misleading here--I am not looking at joining another management firm. Historically I've always worked directly with the end user. My best step is to sign on with one of them in an in-house position and let my old company go about their end of the business.

Interesting enough--I've learned that there has been a reiteration of just what my old company provides in services. Now that I am gone there are certain things they have specified that they do NOT do any more. I'm speaking second hand here and don't know the list--but I suspect that ergonomics is one of them, as that was a skill which I brought to the table before it became such a major part of office design.

I know that there will be some crossover in services but I'm not of the scale to compete as an independent, and don't want to subjugate for someone else's management firm again. I have left a lot of money on the table to continue working under someone else's security blanket. Nice benefit package though.

 

[jon_mx]

A company can let you go and enforce a non-compete agreement? That doesn't make sense to me.

Of course. Otherwise it would be exceptionally easy to get out of your non-compete. Just keep missing client meetings and cursing around the workplace until they fire you.

That make sense. But in this case where they no longer need a person with his skillset and he has been a good employee for 20 years, they should do everything possible to help him find a new job. It is extremely low-life of them to even bring up the non-compete clause.

 

[chubby]

A company can let you go and enforce a non-compete agreement? That doesn't make sense to me.

Of course. Otherwise it would be exceptionally easy to get out of your non-compete. Just keep missing client meetings and cursing around the workplace until they fire you.

That make sense. But in this case where they no longer need a person with his skillset and he has been a good employee for 20 years, they should do everything possible to help him find a new job. It is extremely low-life of them to even bring up the non-compete clause.

Thanks jon. I'm trying to make use of my contacts while supporting what my old firm does, in hopes that they see that I can do my thing and if anything it will help clear the way for them to continue to do their thing. I think they were really surprised at the tone of my exit--because I made it a point to be positive and supportive all the way, both to company and to client. Meanwhile what I'm doing is a whole lot of networking, and it so happens that the client I've been working for is well equipped for that.

 

[bagger]

I love the "prospective customer" language in there, so absurd.

My non-legal advice is as long as you are being reasonable and not overtly or maliciously poaching customers you should be fine.

Also letting your former customers know you have left and letting them know what company you are at without solicitation is a nice subtle way to have them reach out to you.

Phone calls or lunches is probably advisable over emails.

It may or not be considered actionable solicitation, but it's also a good way to get sued if your employer is inclined to make an issue over a whole bunch of clients leaving with you. You may ultimately win the legal battle, but you'll be tied up in litigation in the meantime and your new employer may or may not think you're worth the trouble. When I'm advising an individual client who is subject to a non-solicit, my typical advice is not to try and be cute/tricky and end up getting sued, even if you may have a technical defense that you weren't actually soliciting, unless you are willing to pay the costs of litigation or the new employer is on board with your approach and has agreed in writing to defend you.

i find letting all business contacts where I am going not tricky or cute, but professional.Non compete is not non-communication.

 

[bagger]

I love the "prospective customer" language in there, so absurd.

My non-legal advice is as long as you are being reasonable and not overtly or maliciously poaching customers you should be fine.Also letting your former customers know you have left and letting them know what company you are at without solicitation is a nice subtle way to have them reach out to you.

Phone calls or lunches is probably advisable over emails.

It may or not be considered actionable solicitation, but it's also a good way to get sued if your employer is inclined to make an issue over a whole bunch of clients leaving with you. You may ultimately win the legal battle, but you'll be tied up in litigation in the meantime and your new employer may or may not think you're worth the trouble. When I'm advising an individual client who is subject to a non-solicit, my typical advice is not to try and be cute/tricky and end up getting sued, even if you may have a technical defense that you weren't actually soliciting, unless you are willing to pay the costs of litigation or the new employer is on board with your approach and has agreed in writing to defend you.

The LinkedIn auto-message seems an interesting development in this area. I was speaking with a friend about this last year who said he advises clients to turn it off, so clients in the employee's LinkedIn contacts won't be auto-notified.

thats insane. That's a great example of an attorney taking an extreme position which is definitely not in the best interests of his business client.Good attorneys will understand there is a balance, and advising a client there may be a remote chance of that is fine, but I assure you that a judge will laugh a company out of court if they sued an employee over that.

I would say that since you are notifying everyone you are covered as you are not targeting specific clients of the company.

Of course a company could sue you, but you could also be hit by lightning. Thats what attorneys call a "business decision" which is really just code for I disagree with you but you're paying me so I have done my due diligence so you can't sue me for malpractice.

Sadly too many attorneys advise clients based on limiting their own exposure of being sued by the client before what's truly in the most reasonable position for clients to take. Attorneys that can walk that line well are worth their weight in gold.

 

[bigbottom]

I love the "prospective customer" language in there, so absurd.

My non-legal advice is as long as you are being reasonable and not overtly or maliciously poaching customers you should be fine.

Also letting your former customers know you have left and letting them know what company you are at without solicitation is a nice subtle way to have them reach out to you.

Phone calls or lunches is probably advisable over emails.

It may or not be considered actionable solicitation, but it's also a good way to get sued if your employer is inclined to make an issue over a whole bunch of clients leaving with you. You may ultimately win the legal battle, but you'll be tied up in litigation in the meantime and your new employer may or may not think you're worth the trouble. When I'm advising an individual client who is subject to a non-solicit, my typical advice is not to try and be cute/tricky and end up getting sued, even if you may have a technical defense that you weren't actually soliciting, unless you are willing to pay the costs of litigation or the new employer is on board with your approach and has agreed in writing to defend you.

i find letting all business contacts where I am going not tricky or cute, but professional.Non compete is not non-communication.

The point is right there in your original post. "A nice subtle way to have them reach out to you." I've litigated lots of cases where this type of approach is at issue - "I didn't solicit them. I merely told them where I was going and then they reached out to me. It was only then that I moved the business." Again, you may win or you may not. But if the former employer is aggressive (which often depends on how much business you end up diverting) you'll get sued because they're not just going to take your word for it that you didn't "solicit", whether the contact was tricky or legitimate. Again, if you're not looking to avoid a fight, have at it.

 

[bigbottom]

I love the "prospective customer" language in there, so absurd.

My non-legal advice is as long as you are being reasonable and not overtly or maliciously poaching customers you should be fine.Also letting your former customers know you have left and letting them know what company you are at without solicitation is a nice subtle way to have them reach out to you.

Phone calls or lunches is probably advisable over emails.

It may or not be considered actionable solicitation, but it's also a good way to get sued if your employer is inclined to make an issue over a whole bunch of clients leaving with you. You may ultimately win the legal battle, but you'll be tied up in litigation in the meantime and your new employer may or may not think you're worth the trouble. When I'm advising an individual client who is subject to a non-solicit, my typical advice is not to try and be cute/tricky and end up getting sued, even if you may have a technical defense that you weren't actually soliciting, unless you are willing to pay the costs of litigation or the new employer is on board with your approach and has agreed in writing to defend you.

The LinkedIn auto-message seems an interesting development in this area. I was speaking with a friend about this last year who said he advises clients to turn it off, so clients in the employee's LinkedIn contacts won't be auto-notified.

thats insane. That's a great example of an attorney taking an extreme position which is definitely not in the best interests of his business client.Good attorneys will understand there is a balance, and advising a client there may be a remote chance of that is fine, but I assure you that a judge will laugh a company out of court if they sued an employee over that.

I would say that since you are notifying everyone you are covered as you are not targeting specific clients of the company.

Of course a company could sue you, but you could also be hit by lightning. Thats what attorneys call a "business decision" which is really just code for I disagree with you but you're paying me so I have done my due diligence so you can't sue me for malpractice.

Sadly too many attorneys advise clients based on limiting their own exposure of being sued by the client before what's truly in the most reasonable position for clients to take. Attorneys that can walk that line well are worth their weight in gold.

Yeah, that seems crazy conservative. An auto-notification doesn't involve targeting a client list. As for giving advice based on the risk of being sued by the client as opposed to the most reasonable position for clients, is it really that prevalent? I don't think I have ever done that in all my years of practice. I merely make sure that I have advised the clients of the various risks either in writing or I paper the file to document the verbal communication. Perhaps it's that I've spent a career working in big firms where I don't have to pay for my own malpractice insurance (at least not individually). Or maybe it's that the nature of my practice rarely if ever experiences malpractice claims.