The Primary Problem With Non-Compete Agreements is not Their Enforceability but, Rather, the Difficulties They Create When One Searches for a New Job
The thing about non-compete agreements is that they typically are not enforceable unless a former employee "steals" clients or customers from his/her former employer, or takes "confidential information" and overtly uses that information to compete (unfairly) with the former employer.
That said, an employee will be unable to easily get a "declaration" from a court declaring their non-compete unenforceable, and so it will remain in existence. Enforceability in that common situation is really a non-factor - potential new employers see a non-compete and they typically move on to the next qualified applicant.
HERE
ARE SOME OTHER ARTICLES YOU MAY FIND WORTHWHILE:
Are Non-Compete Agreements
Enforceable in Pennsylvania? How Can I Negotiate a Non-Compete?
Non-Compete Agreements -
Legally Enforceable or Not, Negotiation is Often the Key
What State's Law Applies to My
Employment Contract? What is a Choice of Law Provision?
Recruiters and Non-Compete Agreements in
Pennsylvania
IT Consultants, Personnel Recruiters and
Non-Compete - Non- Solicitation Agreements in Pennsylvania
"Headhunters" and Non-Compete
Agreements in Pennsylvania - Some Things to Keep in Mind
Non-Competes Make Finding a New Job Extremely Challenging
Today, the workplace is more fluid then ever, and employees typically move from one company to another on numerous occasions until they find their ideal fit. These transitions can be voluntary or involuntary. It is the voluntary departures (resignations) that companies are most concerned about - it takes a significant amount of time, human capital and resources to train new employees. Employers positively loathe when an employee that they have "groomed" for two years departs to perceived greener pastures.
What is an employer's best weapon to prevent such an exodus? A non-compete agreement. Companies know that non-compete agreements are what i refer to as "plutonium handcuffs," designed to make it extremely difficult for an individuals to move to a competing company in their chosen profession.
There are numerous, albeit limited, strategies to use when you are offered a non-compete. Your leverage is stronger if you do so before you accept a job offer.
Companies know this, and one of their favorite strategies is to not inform an employee of the existence of a non-compete before the first day on the job. At that point, most people understandably feel they do not have any choice but to sign the contract.
The work around? Ask the company in writing before you take the job if you will be expected to sign a non-compete and, if it answers in the affirmative, ask to see a copy of it.
Companies typically are pretty inflexible when it comes to negotiating non-competes, often responding "We ask every one to sign the same agreement." However, over the years, we have found some approaches that often result in limited success, particularly where the job offer is on the table. They want you, and will feel pressure to appear fair and reasonable.
How Can I Get Out of a Non-Compete?
If you are thinking about leaving your employer, and you have a non-compete, there are strategies that can work. However, you should probably consider hiring an attorney to assist with such negotiations (or in determining whether it is truly in your best interest to try -sometimes it is better to just leave the issue alone).
If the company has ended your employment, it is sometimes possible to get an agreement that would minimize or eliminate the non-compete. But, that is hard for the employee to do directly. "Why do you want out of the non-compete, do you plan on trying to hurt us?" Again, it may be better to invest in counsel to do such heavy and critical lifting for you.
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