本文发表在 rolia.net 枫下论坛A friend was recently asking for advice on dealing with a non-compete clause in her new employment contract. While I must emphasize that one needs to consult a lawyer on matters like this, here are some basic information and thoughts I wish to share. I hope this also serves to invite a discussion of your actual experience and thoughts in this matter.
What is a non-compete clause?
In general effect, a non-competitive clause states that should the employee choose to leave the company, he or she will not go to work for a competitor for a specified period of time, often two years.
Such clause particularly concerns employees who have access to critical information through job responsibility or social interactions with owners or high-level executives. This clause protects an employer from damages caused by losing an employee to direct competitor since the leaving employee might bring commercial intelligence to the competitor causing unfare advantage in the compeition.
A standard non-compete agreement might read like this: "Employee agrees as a condition of employment that, in the event of termination for any reason, he/she will not engage in a similar or competitive business for a period of two years, nor will he/she contact or solicit any customer with whom Employer conducted business during his/her employment. This restrictive covenant shall be for a term of two years from termination, and shall encompass an area within a 50-mile radius of Employer's place of business."
What is the catch for a non-executive employee?
The primary purpose of a fair non-compete clause should only ensure that when an employee leaves the company, he/she does not take any clients or any information that is the property of the employer with him/her. In reality, most clauses are phrased so that the contracted employee can not work in the same field for a specific period of time after leaving the company. It will be actually quite difficult for an employer to enforce a non-compete clause in a contract. Employers keep putting them in, though, in the hope of limiting competition for even a short period of time.
How to respond to non-compete clause in general?
Even though such a clause is difficult to enforce, you still have three options: a. Sign the contract; b. Do not sign the contract; c. Ask to have the clause removed or standardized/generalized.
It is possible to get such a clause removed from a contract. Two things you can consider doing:
1. Explain that signing a contract containing that clause would endanger your ability to earn a living after your employment end with the employer in any event. While you do wish to contribute to and develop with the employer in the long run, and while you think it is a resonable expectation for an individual to build a continuous career in one industry, a strict interpretation of a very restrictive non-compete clause would mean that you are unable to take on any work similar to what you had been doing in a specific industry for a lengthy period of time.
2. Suggest if the employer is truly concerned about the information you will have access to, the employer can add a clause to the contract stating that you will have access to that information that is necessary for general work pupose during your employment period, but the employer can revoke your ability to use that information after your employment ends.
Above is not the best solution to protect you in the long run. The best advice should come from your lawyer. Weigh your cost and benefits and take it seriously should you need to and should you afford to seek legal advice.更多精彩文章及讨论，请光临枫下论坛 rolia.net
What is a non-compete clause?
In general effect, a non-competitive clause states that should the employee choose to leave the company, he or she will not go to work for a competitor for a specified period of time, often two years.
Such clause particularly concerns employees who have access to critical information through job responsibility or social interactions with owners or high-level executives. This clause protects an employer from damages caused by losing an employee to direct competitor since the leaving employee might bring commercial intelligence to the competitor causing unfare advantage in the compeition.
A standard non-compete agreement might read like this: "Employee agrees as a condition of employment that, in the event of termination for any reason, he/she will not engage in a similar or competitive business for a period of two years, nor will he/she contact or solicit any customer with whom Employer conducted business during his/her employment. This restrictive covenant shall be for a term of two years from termination, and shall encompass an area within a 50-mile radius of Employer's place of business."
What is the catch for a non-executive employee?
The primary purpose of a fair non-compete clause should only ensure that when an employee leaves the company, he/she does not take any clients or any information that is the property of the employer with him/her. In reality, most clauses are phrased so that the contracted employee can not work in the same field for a specific period of time after leaving the company. It will be actually quite difficult for an employer to enforce a non-compete clause in a contract. Employers keep putting them in, though, in the hope of limiting competition for even a short period of time.
How to respond to non-compete clause in general?
Even though such a clause is difficult to enforce, you still have three options: a. Sign the contract; b. Do not sign the contract; c. Ask to have the clause removed or standardized/generalized.
It is possible to get such a clause removed from a contract. Two things you can consider doing:
1. Explain that signing a contract containing that clause would endanger your ability to earn a living after your employment end with the employer in any event. While you do wish to contribute to and develop with the employer in the long run, and while you think it is a resonable expectation for an individual to build a continuous career in one industry, a strict interpretation of a very restrictive non-compete clause would mean that you are unable to take on any work similar to what you had been doing in a specific industry for a lengthy period of time.
2. Suggest if the employer is truly concerned about the information you will have access to, the employer can add a clause to the contract stating that you will have access to that information that is necessary for general work pupose during your employment period, but the employer can revoke your ability to use that information after your employment ends.
Above is not the best solution to protect you in the long run. The best advice should come from your lawyer. Weigh your cost and benefits and take it seriously should you need to and should you afford to seek legal advice.更多精彩文章及讨论，请光临枫下论坛 rolia.net