Searching for a Job With a Non Compete Agreement

Navigating a Job Search While Stuck to a Non Compete

When embarking on a job search, it's crucial to consider the impact of any existing non-compete agreements. Even if your former employer isn't actively pursuing enforcement, potential new employers often inquire about non-competes and may request to review them before extending job offers.

Understanding the limitations imposed by your non-compete is essential as you initiate your job hunt. This knowledge helps you identify companies and roles that won't conflict with your agreement and empowers you to make informed decisions.

Here's what you need to consider:

1. Understanding Non-Compete Restrictions

Before assessing the enforceability of your non-compete, comprehending its written restrictions and implications is essential. This insight allows you to categorize job opportunities as either safe or risky in terms of potential conflicts with your agreement.

Key aspects to scrutinize include:

How does the agreement define "competitor"? Some non-competes cast a wide net, labeling anyone within a particular industry as a competitor. Others are more specific, focusing on companies offering similar products or services within the same geographic region. Understanding this aspect can help you identify prospective employers that align with your non-compete.
Is the geographic area clearly defined? If your non-compete applies to a specific region (e.g., Massachusetts or New England), job prospects outside of that area may be unaffected by its restrictions.
What are the non-solicitation obligations? Apart from non-compete clauses, these agreements often include restrictions on soliciting or conducting business with the former company's clients or prospects. Review the agreement to determine whether it limits you to soliciting customers you've dealt with or extends to any of the company's customers.

2. Understanding Non-Compete Enforceability

Assuming the language of the agreement would restrict you in your targeted job search, the next question is whether it is likely to be enforced against you. If it was signed on or after October 1, 2018, you should review the specific requirements of the Massachusetts Non Compete Act to see if your agreeement complies.

Even if it is an older agreement, or if it technically complies with the Act, there may be other reasons your agreement may not be enforced.

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3. Disclosing Your Non-Compete to Potential Employers

Should you proactively inform potential employers about your non-compete agreement? While some employers inquire about post-employment restrictions, there are compelling reasons to disclose it even when not asked. If you believe your non-compete could apply to the new opportunity, discussing it beforehand is usually advisable. This transparency allows you to gauge the new employer's willingness to hire you with the agreement's restrictions, preventing surprises after you've accepted the job and given notice at your previous workplace.

4. Seeking a Waiver of the Non-Compete

In some cases, prospective employers may condition a job offer on obtaining a waiver or release of your non-compete from your former employer. While this situation can be challenging, it's worth exploring your options.

You can initiate discussions with your former employer to request a waiver, especially if they don't perceive your new employer as a direct competitor. Sometimes, compromises can be reached, such as avoiding specific clients or limiting your role within the new company for a defined period.

However, if you encounter obstacles, it may be prudent to seek legal counsel to identify potential issues with the enforceability of your non-compete. Your attorney can help draft a persuasive letter to your former employer or collaborate with your new employer's legal team to mitigate their concerns about assuming risk. As a last resort, you can initiate legal action to obtain a declaratory judgment on the non-compete's enforceability, though this option typically involves costly litigation.

Meet Our Employment and Non Compete Lawyers

Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year. She has written a book on employment law: Rules of the Road, What You Need to Know About Employment Laws in Massachusetts, been interviewed by the Massachusetts Superlawyers magazine about non compete agreements, and written an op-ed in the New York Times about the dangers of non competes. Along with the rest of the slnlaw team, she has helped hundreds of clients navigate, negotiate, or defend against their non compete agreements.

Rebecca Rogers: Rebecca is a 2006 graduate of Boston College Law School, and has worked with slnlaw since 2013. She previously worked as an intellectual property litigation attorney for Fish & Richardson in Boston, Massachusetts, and clerked for the Massachusetts Supreme Judicial Court. Rebecca has helped many clients understand and evaluate their non compete agreements and develop strategies for defending against non compete enforcement and negotiating resolution.

Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna works with employers to develop reasonable and enforceable employee agreements, including non competes. She has also helped employees understand and evaluate their non compete agreements and develop strategies for defending against non compete enforcement and negotiating resolution.

Elijah Bresley: Eli is a 2014 graduate of Seton Hall Law school, and has worked with slnlaw since 2020. He previously worked for a boutique employment law firm outside of Boston, and then for the Labor and Employment department of a large Boston firm. He also spent a year clerking for the judges of the Superior Court in Hartford, Connecticut. Eli has helped clients both evaluate and negotiate their non compete agreements, and defended non compete claims in state and federal courts.

How We Can Help

Navigating non-compete agreements during a job search can be complex, but understanding your rights and options is crucial. We're here to help. You can use the button below to schedule a free information call, or call us at (781) 784-2322.

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