Thursday, June 8, 2017

Stiff Competition?

by Courtney Hart

Many professionals in Maine find themselves at a crossroads when accepting a new job. Sometimes an employer will ask a new employee to sign a non-competition agreement, also known as a “covenant not to compete.” Although most of the details of new employment, such as salary, hours, job description and benefits concern the job itself, the non-competition agreement deals with what happens if things don’t work out and the employment ends. Also, unlike the terms of employment, non-competition agreements sometimes aren’t negotiable.

What might this mean for you?

First, we’ll consider what a non-competition agreement does. Usually, they indicate that if you decide to leave the job, you can’t work for a competitor for a certain amount of time and within a certain distance of the old job. This prevents people from going next door to the competing insurance agency, for example, and taking the special knowledge or trade secrets they may have acquired at the first job and using them to benefit the competitor. It can also stop you from soliciting clients of the business to go with you to your new position.

All of this may sound reasonable when you’re signing it and you’re excited about the new opportunity, because you’re obviously not contemplating what happens if things go wrong. But, what if things do go wrong, or you’re simply ready to make a change several years down the road? That’s when things can get complicated. If the old employer feels that your new job is a threat to her company, she probably will try to enforce the agreement you signed.  This may keep you from pursuing the new opportunity you want.

So, what should you do if you’re contemplating accepting a job offer, or if you want to leave your job but are concerned that such an agreement may prevent you from working?

That’s where attorneys come in.  If you’re asked to sign a non-competition agreement, you should ask an attorney to look over it for you. The attorney will be able to tell you if the restrictions seem reasonable or if they may go too far. If the attorney thinks the provisions might be too extreme, he or she may be able to help you negotiate better terms with the new employer.

The same holds true if you’d like to make a change and you’re afraid this kind of agreement may prevent you from doing so, or if you have a new job and your former company tries to prevent you from working by threatening a lawsuit. One of our experienced attorneys can help you by reviewing the agreement to see if it is too broad.  An attorney can help you try to work things out with the old employer in a way that allows you to move on. If not, your lawyer can defend your rights in a lawsuit.

Courts in Maine look carefully at these kinds of agreements because they are meant to protect the knowledge and client base of companies in specialized professions, not to prevent people from working in their chosen trade or profession. A court will ask questions such as:  How long does this restriction last – is it just 6 months, or is it 2 years? How far does the restriction go – is it within 5 miles of the old company or 50?  Typically, the broader the restrictions, the harder it will be for a company to enforce them, especially if they gave the employee no choice but to sign the agreement to get the original job. But whether a non-competition agreement will be enforced depends on the specific facts in each case – the kind of profession, the likelihood that clients would follow, the scope and duration of the agreement, and more. That’s why you need an attorney in your corner –  to make sure you’re treated fairly and you can keep working.

If you have any issue with a non-competition agreement, please contact one of our experienced attorneys at Bergen & Parkinson, LLC today, and we’ll be glad to help you navigate the situation.

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