Thursday, July 7, 2016

Should I Sign That Noncompete?

It is a paradox of today’s job market that employers want ever-greater flexibility in their ability to shed workers but simultaneously want to reduce workers’ flexibility in seeking employment. Specifically, employers increasingly are imposing noncompetition agreements (“noncompetes”) that can seriously limit workers’ ability to find jobs elsewhere. According to a White House report (PDF), an estimated 30 million Americans, nearly one-fifth of the workforce, are bound by these agreements, and roughly 37 percent have been so bound at some time during their careers. Perhaps the agreements themselves have not proliferated but merely their enforcement. Whichever is the case, “The law firm Beck Reed Riden LLP found a 61 percent rise from 2002 to 2013 in the number of employees getting sued by former companies for breach of non-compete agreements.”

The White House looked into this matter out of concern that noncompetition agreements can hamper the economic recovery. “Non-competes can reduce workers’ ability to use job switching or the threat of job switching to negotiate for better conditions and higher wages, reflecting their value to employers. Furthermore, non-competes could result in unemployment if workers must leave a job and are unable to find a new job that meets the requirements of their non-compete contract. In addition to reducing job mobility and worker bargaining power, non-competes can negatively impact other companies by constricting the labor pool from which to hire. Non-competes may also prevent workers from launching new companies.”

In some states, most notably California, employment laws make noncompetition agreements essentially unenforceable.  It is thought that the absence of noncompetes is one of the factors that have contributed to the towering success of the Silicon Valley. Job-hopping is a normal part of career building in the tech industry there. In fact, job-hopping is one of the reasons that employers have traditionally tended to cluster together geographically with others in the same industry, even when access to natural resources or transportation infrastructure is not a factor. Think of New York for finance, Nashville for music, or Detroit for automobiles.

Noncompetes reduce the efficiency of these industry clusters. As a result, The New York Times reports that some states are trying to limit the reach of noncompetes in hopes of duplicating one of the factors of the Silicon Valley environment: “Hawaii banned noncompete agreements for technology jobs last year, while New Mexico passed a law prohibiting noncompetes for health care workers. And Oregon and Utah have limited the duration of noncompete arrangements.”

I live in New Jersey and have personal experience with this kind of shackling. In the late 1990s, my employer required that I sign a noncompetition agreement as a condition for receiving a raise. I complied, although it bound me not to compete for one year, and after a downsizing only a few years later, the agreement seriously limited my work as a consultant. The crowning irony was that only a few years after I began consulting, my old employer came back to me in need of my consulting services and presented me with a contract that contained another noncompetition agreement—this one binding me for two years.

I refused to sign it, and with no hesitation or bargaining, they struck that paragraph from the contract. Since then, I have been asked by another employer to sign a noncompete and have again refused, with no adverse consequences.

What should you do if an employer confronts you with a noncompetition agreement? First, you should investigate whether it is enforceable in your state and for your occupation. To be totally sure, you may want to consult a lawyer, but you can get useful preliminary information from a downloadable chart at the website of Beck Reed Ridin, LLP.

It’s usually a good idea to negotiate with your employer over the terms of the noncompete. If you’re lucky enough to have some bargaining power, such as a very desirable skill set, you may be able to convince the employer to strike the agreement entirely. If not, you may be able to get the employer to relax some of the terms. For example, you may suggest altering the agreement to restrict you only in a certain geographic area or only from working for certain employers. You may be able to reduce the duration of the restriction. You may get the employer to accept wording based on the conditions of your future separation—for example, that the restriction will apply only if you quit, not if you are terminated.

Be sure to examine the fine print of any noncompetition clause. (Again, a lawyer may be helpful.) For example, some agreements include the onerous requirement that the ex-employee will have to pay any legal fees that the employer incurs as part of enforcing the agreement. Such additional burdens may also be negotiable before you sign.

Understand that one reason employers like to impose noncompetition agreements is that they fear you will carry company secrets to a competing organization. It is reasonable for the employer to ask you to sign a nondisclosure or confidentiality agreement with wording that is separate from noncompetition.

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