Have you been an independent contractor? Did your contract include a non-compete clause (which says who you can and can't work for while you're working with them or after you leave)? It was a waste of paper.
Non-compete clauses are not enforceable in independent contracts. They're barely enforceable for standard employment contracts.
I learned this last week in a fascinating conversation with an HR professional, Angelique Andrea of HR Awakening. I'd seen them and heard of them forever. They have caused a lot of consternation, anxiety, and frustration.
And they're not enforceable.
Why? Very simply, one company cannot tell another company where, how, and when they do business. When you are brought on as an independent contractor, you are brought on as a business, not an employee. In fact, part of being a "real" independent contractor is that you are continuing to look for work, market your services, etc.
But....but....but.....you keep reading contracts with a non-compete clause in it! And they assure you the contract has been reviewed by a lawyer! Still not enforceable (not illegal, just not enforceable).
A contract can include a non-solicitation clause. This clause defines the "rules" that govern whether you can actively recruit the company's clients or employees, both while you're there and after you leave. Those are enforceable (of course, within reason).
But that pesky non-compete clause? Waste of good paper.
What do you do if faced with one? Continue to negotiate (you are negotiating, yes??) and point out that the non-compete clause isn't enforceable and you'll need it dropped from the contract before you can sign it.
Still not sure? Talk to a human resources professional, an employment lawyer, or a contract lawyer (I am none of these). Contact Angelique at HR Awakening. She's researched this specifically for the massage therapy profession, at my request.
It continues to be very important that we take ourselves seriously as businesses. A good business owner understands what is reasonable in a contract and what isn't. It's just part of being a smart business person.
Unfortunately, and while I wish you the best of luck, it seems like you've been given some wrong legal information - unless you happen to be in California. In many jurisdictions, like New York (where I practice), the courts have routinely upheld non-competes so long as they don't overreach, either in terms of duration or too broad a geographic scope, and protect a legitimate interest of the former employer. If you would like additional information on this topic, I suggest you read up on the topic. There are free guides available, such as here http://www.nybusinesslitigationlawyer.com/reports/to-compete-or-not-to-compete--the-definitive-insider-s-guide-to-non-compete-agreements-in-new-yo.cfm
ReplyDeleteJonathan - this article is concerning 'independent contractors,' not 'employees,' as you noted - "interest of the former employer."
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