DENVER, CO -- Last night, a candidate reached out to me regarding his desire to change jobs. He has been a top ecommerce executive at his current company for several years, and he's ready to make a change.
However, he has a non-compete agreement with his current employer. I have not reviewed the agreement and I don't plan to, since I'm not a lawyer. But I do have some hard-won first hand experience with non-competes, and here's what I told the candidate:
First, talk to a good labor lawyer about the legality of your non-compete. Don't pick some random lawyer from the phone book. Get a real labor lawyer -- preferably one who has very solid trial experience. Your town's legal community is smaller than you think, and if you hire a well-known badass gun slinger who has fifty notches in his belt, then your employer's counsel is much less likely to pursue a showdown in court. This is what President Reagan used to call peace through superior fire power, and it works like a charm.
Now obviously, if your agreement is legal, then by all means "render to Caesar that which is Caesar's." But if it isn't, then you MUST pursue a future-oriented career path that leverages where you've been, what you have done, what you enjoy, and what you are naturally good at. In my opinion, it's a sin to do otherwise.
Think of it this way: Imagine you are a pro baseball player. God gave you talent, and you've spent your whole life learning to play the game. It's what you know how to do. More than likely, your current team operates in a "Right to Work" state, like Colorado in my candidate's case. An employer cannot prevent you from making a living in the state where you live. You have a right to work. So there.
Moreover, if a non-compete is invalid in ANY SINGLE respect, then the ENTIRE agreement is worthless. Clauses in an employment contract are like stones in an arch: If one stone crumbles, the entire structure comes tumbling down. Re-read this.
Also: Most non-competes are illegal because they are "overbroad." They try to go too far in marking where a former employee cannot compete. For example, some companies will say that "an employee cannot do business with any prospect in our database." Yet only a small handful of those hundreds (or thousands!) of contacts are actually paying clients. That's overbroad -- and it renders the entire agreement worthless.
Again, my personal experience is that non-competes are total BS. Don't let your employer bully you out of your industry. You know the trade and you probably have a ton of built-up relationship equity there!
But don't be stupid, either. Talk to a lawyer. There are plenty of cases where non-competes have not only been valid, but have been enforced. Trust in God and tie up your camels, as they say.
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