Should you sign a Non-Compete Agreement? Part 1

More companies than ever are requiring salespeople and other employees to sign non-compete agreements. Given the high turnover in many sales departments, and determination of competitors to steal good employees, this really shouldn’t come as a surprise. In addition, with so many mergers and acquisitions going on these days, employers are worried that salespeople are going to jump ship and steal their customer/prospect lists, confidential marketing plans, and other proprietary information.

signing a non-compete agreementBut first, what is a non-compete agreement? It is a contract between you and your employer. The agreement states that you will not work for a competitor within a certain length of time after you leave your employment. The time period can range anywhere from a few months to two years or longer, depending on your position and the type of company or industry you work in.

The agreement will probably include a clause that you cannot share client lists, trade secrets or other information that your employer considers to be confidential or proprietary. In some cases, the agreement may state that even if you are allowed to work for a competitor, you cannot solicit sales from your former customers or even from any customers of your old employer.

The agreement can be anywhere from a few paragraphs to several pages long.

The agreement’s purpose is to protect your employer from losing business to a competitor. From an employer’s point of view, he is investing time and money in you to sell his products and services. If you jump ship to join a competitor, not only is he losing you as an employee, but you could potentially bring his customers and trade secrets to his rival, and thus hurt his business.

Non-compete agreements are based on state law and vary from state to state. Some states don’t enforce non-compete agreements. Some courts may not enforce them, either.

blue pencil lawOther states may have “blue pencil” laws that give judges the authority to modify a non-compete agreement. For example, if an agreement states you cannot work for a competitor for three years, a judge may consider that time period unreasonable and reduce it to six months. Another example is that if the agreement states you cannot work in a specific industry, let’s say pharmaceuticals, a judge may find that is too broad and restrictive on your ability to find work. If an employer had specifically named competitors in the agreement before you signed it, you might have a more difficult time working for a specific competitor.

There is a lot of controversy about how legally binding non-compete agreements really are. I’m not an attorney. My suggestion is that if you are asked to sign an agreement, you should seek legal advice. However, if you delay in signing the agreement, your potential employer may become suspicious of your true intentions to work for him, and may withdraw your job offer. Still, you should be prepared to be asked to sign such an agreement if you decide to accept a job offer.

If you are lucky, you will receive the non-compete agreement along with other paperwork to complete before officially coming on board. If you don’t receive any paperwork in advance, I suggest that you contact your new employer’s HR department and request it. If they ask why you want the paperwork in advance, tell them that you want to save time by completing as much of it as possible before you start your new job. In most cases, the HR department will comply with your request and email the material to you. If you get a non-compete agreement in advance of starting your new job, which should give you enough time to have an attorney review the document and offer his advice.

To learn more about non-compete agreements in your state, please check out Beck Reed Riden (BRR)’s 50 State Non-compete Chart. It was posted on August 9, 2015

Heather Bussing also wrote an interesting article on “Is Your Non-Compete Agreement Enforceable?”

In my next post, I will discuss some of my personal experiences with non-compete agreements.

Note: Like my post? Please check out my book – Advice for New Salespeople: Tips to Help your Sales Career.

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