Why should I care if my employment or separation agreement contains Non-Compete provision?
You should care because if you violate the provision and work in the same industry as your prior job, your prior employer can sue you for breach of contract. At minimum, a court that upholds the non-compete provision will order an injunction against you, thereby forcing you to quit your new job. Many of these agreements contain liquidated damages to the company; meaning, that the mere violation of a non-compete entitles the company to a set amount of financial damages, such as $150,000 per infraction, in addition to the employee paying the company for its attorney fees for the litigation.
When is the right time to have my non-compete provision reviewed by an attorney?
The best time is while the employment or separation agreement is being negotiated and prepared, before you sign it. A non-compete clause can be a huge career blow. Imagine not only losing your job, but being prohibited in working in the same industry for a period of 2-5 years. Before you sign a provision like that, it would be a large self-inflicted career wound not to at least attempt to negotiate around it or have an attorney attempt to invalidate it.
But what can a lawyer really do about it?
That depends on the particular situation. We have reviewed many of these provisions over the years and we have provided all kinds of advice with respect to their validity, their reasonableness in time and geographic location, negotiating around them or ways of legally circumventing the clause.