Question about Non-Compete in my job offer

DirtylilTechBoy

Senior member
Oct 19, 2001
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Hello,

I got a pretty good job offer but I have some concerns about the non-compete. I am going to be the senior account manager for a large hosting company. The pay is good and not something I want to pass up. Honestly, this is a better job than I could have asked for in this time of my life. Anyways, this is Exhibit A which outlines what a business in competition with my employer is.

For purposes of the foregoing Employment Agreement, a "business in competition with the Company" means any business involving internet web hosting, dedicated and collocated server hosting, web design, internet marketing, internet access, storage backup and IT outsourcing of internet-related services.

My concern is that if I quit the company or get fired, whatever the case, I have two years before I can perform any of those business actions. This essentially is my livelihood so if I were to quit, I really wouldn't know what to do with myself. This company is a Tier 1 hosting company that does everything from $20 a month solutions to $100,000 a month solutions.

Do I just sign it and if I quit, do what I need to do for money because just about anything I do on my own will be insignificant compared to them?
 

Abzstrak

Platinum Member
Mar 11, 2000
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I've had to sign similar, it probably depends on your state laws, but for the most part I was advised by legal council that its 99% scare tactics and that there are not any real concrete precedents set for this... He told me not to worry about it, and I didn't. Three years later I quit and went to work for a direct competitor and they didn't blink and eye.
 

spidey07

No Lifer
Aug 4, 2000
65,469
5
76
DirtyLilTechBoy,

Non-compete's don't carry much weight in court. Sure it could get ugly, but I suggest you talk to an attorney.

-ps- if you are let go there is nothing the company can do to stop you from getting a job. period.

Talk to your attorney.
 

everman

Lifer
Nov 5, 2002
11,288
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The main reason is if you go work for their competitor after finding out all of that companies accounts, you won't be going after all of their business. It doesn't mean you can't do anything for 2 years.
 

DirtylilTechBoy

Senior member
Oct 19, 2001
304
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I'm sure someone could twist this into meaning I couldn't do any of those business acts because as long as I am doing something that is competing with them, no matter how big or small or insignificant the act.

I'm going to call my attorney tomorrow and ask. However, they want me to start tomorrow at noon, and I am supposed to bring the agreement then.

 

cmetz

Platinum Member
Nov 13, 2001
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First and foremost, why are you asking here? I am not a lawyer, and I suspect most folks here aren't either. If it's that important, talk with a good lawyer. Do not interpret the following as legal advice (cough, cough).

What state does the contract state as its venue? (what state you're actually employed in mostly doesn't matter).

If it's California, you're set. California courts pretty much always seem to side with the employee against companies. I don't know of a single case of a noncompete standing in court in CA.
If it's Virginia, you might have a problem. Virginia courts pretty much say, you signed a valid contract, you need to live up to your end of the agreement.
Other states vary.

Most states' legal precedent is that you have a right to work in your field, and the principle of inevitable disclosure (the legal basis of a noncompete) has been held mostly bogus. However, most states precedent basically comes down to this: whether it gets upheld or not depends on how imposing the restriction is. For example, if a noncompete restricts you for 30 or 90 days, that's a lot harder to fight in court than a noncompete that restricts you for 2 or more years. Similarly, if a noncompete is very narrow and specific in what you're not allowed to do, that's a lot harder to fight in court than a noncompete that restricts you from doing anything in your field.

My personal opinion, which I must emphasize is not a legal opinion and not worth the electrons it's written on, is that the noncompete you quote probably wouldn't hold in court.

That said, if you're involved in legal action with a former employer and a future potential employer finds out about it, you can be darn sure that you will not be hired. Regardless of how just your case might have been and whether or not you won, most managers I know would not touch a candidate who they knew was involved with a legal conflict with a past employer. It's just a bad place for that manager to be. So that means that you need to understand clearly that it's not just a matter of what would hold up in court, because any court case where you win the case but get blackballed in your field is quite a Pyrrhic victory.

What I would suggest you do is have a talk with your hiring manager. Explain your problems with this, suggest a proposed compromise solution, and ask what he can do to get this changed. Then pay very close attention to his actions and words. If they're willing to work out a reasonable compromise for you, or at least if your hiring manager is willing to go to bat for you and try to help you with this, that's a good sign. If your hiring manager tells you basically "our way or no way," then you should ask yourself if that's a company and a manager you want to work for.
 

cmetz

Platinum Member
Nov 13, 2001
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DirtylilTechBoy, btw, don't let them rush you. Very important. Do not let them rush you. If they can't wait a day or two and can't produce a very solid reason for the urgency, something's very wrong.

It's usually not good to tell them you need to talk with your attorney. That immediately puts them on the defensive, hardly a good way to start a relationship with a future employer.

Most employers will accept without question unspecified "family reasons" for a delay. That would be a lie and I cannot in good conscience suggest that you lie to anyone, but it's also the tried and true catch all white lie excuse, and allows everyone to save face and not feel threatened.
 

DirtylilTechBoy

Senior member
Oct 19, 2001
304
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I think I am going to go forward with it. They need the spot filled immediately, and every day that goes by with me or someone not in that position is a day that is a lot harder for them. I am going to say something about the clause and ask it to be changed, but if they refuse then I will just deal with it. As said before, it probably won't hold up in court and if it does, then damn them. I'm going to call my attorney tomorrow morning and get a quick opinion. However, i might play hardball at first because they quickly caved to my financial expectations when we first talked. They were only going to pay me commission but when i said I needed dependable income at least for the first few months, they asked what I make currently, and when I told them, they said they would give me double what I make now plus commission.