Did you sign a non-compete agreement and your employer is trying to enforce the terms of the non-compete agreement? Here is what your former employer may try and do.
They will ask the court to file an injunction. This injunction acts like a restraining order and stops the former employee from completing any work that is restricted in the non-compete agreement. At a hearing the judge hears evidence from both the employer and the employee. Using that evidence the judge then decides whether the non-compete agreement is legally enforceable. Should the judge decide the non-compete is unenforceable then the former employee has successfully exited their non-compete agreement. There may more than hearing depending on the state in which the case is filed.
However, because non-compete agreements are enforced by state legislation the likelihood the courts will rule in your favor, over that of the company, is heavily dependent upon which state you are filing in. For example, in California a person who chooses to simply ignore the terms of a non-compete can be one hundred percent certain any court would rule in their favor. This is because the state of California has ruled that the enforcement of any non-compete is illegal within its borders. On the other hand, breaking a non-compete agreement in Florida does not have the same odds of success. State laws in Florida tend to support the enforcement of non-competes.
Know Your State’s Laws
When attempting to leave a non-compete it is best to start by researching regulations within your state. Not only does the legislation regarding non-competes change from state to state, but the enforcement of non-competes also varies on a case by case basis. This is way it is also important to read your own non-compete agreement thoroughly, as well as have it read by an employment attorney to gauge its enforceability.
Another way to gauge the enforceability of a non-compete agreements is through a declaratory judgment. During a declaratory judgment an employee brings their non-compete agreement before a court and asks a judge to decide if it is an enforceable agreement. This type of review is not available in every state. In addition, even if it is available that does not mean that is the best way to move forward in every case. It may be more tactical to take another approach. This is especially true in states that have legislation in favor of the enforcement of non-competes.
Before going to court there are other ways to get out of non-compete agreements. One way is to not get out of the agreement at all. Instead of trying to get out of the agreement some workers have found ways to work within the set provisions. If the non-compete restricts employment within certain geographical location, one solution might be finding work just outside of the limits. In cases where employment in certain industries is restricted it may be possible to find similar work in a different industry. It also might be possible to work in a different compacity within the same industry. Finally, if your financial situation allows it, it is also possible to wait out the time limit of the non-compete and begin work again once the agreement is no longer enforceable.
Negotiating a Release
However, many people are unable to wait for work and working around the provisions of the non-compete agreement also may not be possible. There are other ways to get out of a non-compete that does not involve the financial and time constraints of court. One such way is through negotiating a release.
A release is a new document signed by both the employer and the employee that allows the employee to leave the company without being bound by the non-compete they originally signed. It is very important when using a release to leave a non-compete that the new agreement is signed and documented by both parties. Just like a non-compete agreement must be signed to be considered valid, a release must be signed as well.
When negotiating for a release it is important to know your state laws regarding non-competes, as well as read your non-compete thoroughly, just like you would if you were going to court. By doing this you be able to understand the intertest your company wants to protect, what specific employment mobility the non-compete restricts you from, and the likelihood of a judge releasing you from the agreement should you have to go to court.
Knowing the issues your company is seeking to protect can help you find areas where you may be able to compromise. It may also allow you to better argue how your new employment opportunity will not infringe on their interests. Being sure of what mobility and freedom you want when leaving the company will ensure the negotiations center only on the provisions in the agreement that affect you the most. If it is likely that a court would rule in your favor this could be used as leverage while negotiating a release. It is best to complete these negations in a meeting with HR and your superior. In addition, the importance of getting any release agreed upon in writing and signed cannot be stressed enough.