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Freedom Quest: Unlocking Career Shackles-The Many Ways Employment Non-Compete Agreements Can Be Rendered Unenforceable [By Jeff Isaac] Hundreds of thousands, if not millions, of working professionals throughout America have signed a non-compete agreement at one point or another during their careers-not by choice but, rather, due to employer job requirements. Often, the bottom line is simple: sign the agreement as is or forego the job opportunity altogether.

Geographic Scope: Non-competes that

is deemed adequate consideration. So

binds the employee to not compete, directly

have too large of a geographic scope

the odds are in favor of those required

or indirectly, with the employer and/or

are more likely to be denied by the

to sign non-compete agreements well

work for a competitor after termination of

courts. While this is still subjective to

after their employment start dates. And

the employment relationship. For courts,

the court’s opinion on the matter, an

if the employee is already a part of the

however, the definition and enforceability

argument can surely be made if the

organization, the agreement is not likely

of this document is not so clear-cut. Such

region the non-compete agreement

to be enforced by the courts unless the

agreements are rife with legal loopholes and

covers is all-encompassing.

employer makes it readily apparent

By definition, a non-compete agreement

“gray areas” that are contingent upon the

that it offered additional consideration•

Duration: Many states are more likely

salary increase, improved benefits,

from one employer to another. The merit of

to void an unreasonable restriction

etc.-beyond the job itself in exchange

these documents can also vary from state to

rather than modify it. For example, if

for the constraints it sought to place

state, with some states-but not all-classified

a two-year duration is specified in the

upon him or her.

as “right-to-work” territories, rendering some

agreement and the court considers

non-compete agreements null and void.

this duration unreasonably long, it may

drafting and implementation, which can differ

Far too many job seekers do not read or

State and Local Laws: In some states,

nullify the restriction entirely rather

non-competes are not legal and will

than upholding it for a shorter duration.

not be supported by the courts. In

entirely understand the fine print of non-

California, for example, a non-compete •

Activity Scope: If the employer has

agreement is only enforceable with

know what constitutes one that is rightful

been too broad relative to the activities

respect to the sale of a business.

versus one that is wrongful. While it’s

it is attempting to restrict, then the

Employers in this state cannot,

understandable that employers want to

courts will likely rule in your favor.

however, restrict the livelihoods of their

establish a measure of security against unfair

Often, non-compete agreements are

current or former employees.

competition by former employees, these

considered unreasonable if the intended

documents are often far too restrictive with

scope is beyond that related to the

respect to the professional’s right to earn

company’s direct competitors and

not a court will support a non-compete

income within the industry where his or her

established customers and/or clients.

agreement might also depend on why

compete agreements and do not inherently

skills are most applicable.

Departure Considerations: Whether or

you left the company. For example, •

Consideration of Compensation:

if your employer fires you for “good

How does an employee know if he or she is,

Courts are also unlikely to enforce

cause” or if you quit to take a new job,

in fact, truly bound and restricted by a non-

a non-compete agreement if the

it might be enforceable. But if your

compete agreement he or she has signed?

opportunity for adequate consideration

company fires you or if you resign for

Here are some of the many shortcomings that

is not provided at the time of signature

reasons beyond your control, such

can render a signed non-compete agreement

so that an informed decision can be

as company-wide layoffs, permanent

non-enforceable:

made at that time. At the onset of an

disability, and the like, the court may

employment arrangement, the job itself

not enforce a duly signed non-compete

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About the Author:

agreement. If, however, you have been

thus achieving mental servitude, or hoping

fired for “good cause” or if you resign to

to otherwise intimidate their new hires

take another job, you may be out of luck.

in attempts to protect their companies’

Jeff Isaac, Esq., a.k.a. “The Lawyer in Blue

interests. Therefore, even if you have signed

Jeans,” is a veteran attorney who offers

While some employers know all too well

a non-compete agreement, do diligence to

down-to-earth legal perspective on issues

that their non-compete agreements are not

see what rights you do or do not have with

affecting individuals-and society at large-on a

enforceable in a court of law, many often

respect to your specific draft of this so-

day-to-day basis. He can be reached through

require new hires to sign them anyway,

called employment contract-you may be

his website at www.LawyerInBlueJeans.com.

hoping their employees will not know the

free of those “shackles” to seek whatever

documents are not legally binding, and

employment you desire after all.

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Freedom Quest: Unlocking Career Shackles