BE A SMART EMPLOYEE

For my Gen Xers and Gen Yers (you know who you are if you (1) have a facebook page; or (2) myspace profile; (3) a Blog; or (4) a profile on Linked in), LISTEN UP!

Be careful what you post on these websites.

If you are going to leave your company - and have a non compete (even if you are not going to breach the non-compete) be careful what you post.

Don't post info about when you are going to start a company, or quit your job, or what you think about your current employer. They are watching, and looking - and if and when you leave, their lawyers will be watching and looking like crazy!

Hard to argue "I had no intention of starting my own company and serving these old clients" when your linked in profile states "I left my old job to start my new company."

or, hard to say "I didn't ever take proprietary information home or load it onto my home computer" when your blog says - "spent the day at home yesterday, making client calls."

Always be honest, but know, that even exaggerations on the Internet look like TRUTH - and you don't want all of these comments, admissions or statements, coming back to you in court someday!

WHAT TO DO ABOUT YOUR NON-COMPETE

Hate your current job? Maybe you don't hate it, but you want to leave? Have a non-compete?

Before you call our office and ask us to review your contract, this is what you need to do:

1. REVIEW YOUR CONTRACT - does it say that Virginia law applies? If so, we can help.

2. DON'T TELL ANYBODY - don't tell your friend at work you are thinking of leaving - don't tell anyone at work!

3. DON'T PLAN YOUR NEW BUSINESS, AT WORK - I thought this was obvious, but sadly - I was wrong. When you leave, they will sweep your computer - any emails you sent about your new business, business plans drafted - websites searched, will become your employer's evidence against you in a breach of contract or tortuous interference case.

4. FIND OUT WHAT HAS HAPPENED TO OTHER EMPLOYEES WHO LEFT - do you know there have been 4 folks who left, competed, and were not sued? That's good news - try to quietly find out what has happened to other employees.

5. SAVE MONEY - even if your employer sues you, and the court finds either (1) the contract was invalid or (2) you didn't breach it - you will have to pay a good deal of $ in attorneys fees defending yourself, and unless your contract has an attorneys fee provision in it, you will not likely get repayment for what you have spent.

6. BE ORGANIZED - in Virginia, a Breach of contract claim can be brought in 5 years of the breach - which means, you could be sued for something that happened many years ago. Keep records, emails, contact names etc - any doubt in your mind? Be organized.

HAVE SOMEONE look at the contract. It may be over broad. it may be invalid - it may however, be binding - and if so, we would hate for you to spend time and money defending a lawsuit, only to be told by the Court, you can't compete after all!

WORSE THAN YOU THOUGHT

Please read your employment contract before you sign it.

Please have an attorney look at it with you to explain what it means.

Example 1 - woman wants to leave her job. She notifies her supervisor, who says "We don't want you to leave, and if you do, you owe us $10,000." "WHAT?" She exclaims! Upon review of the contract, it says that if she leaves before her contract is up, she owes them a certain amount of money.

I have seen this in many contracts - from counselors to doctors.

Example 2 - Man works for XYZ corp but is the only employee at XYZ that serves certain industries. He would rather work from home, and says he is going to leave. Employer reminds him that even if XYZ Corp cannot continue to work in that area, he can't either because he signed a non-compete that prohibits him from working anywhere within a 50 mile radius of their office, serving that industry!

We see this type of situation in almost every field (but law) - accountants, car salesman, engineers - you name it

Example 3 - Client calls and explains, "In my industry, there are only 4 clients worldwide. My non-compete says for the next 5 years, I am prohibited from working at another business that serves any of those 4 clients in the way I used to at my old company. What can I do?"

Non-competes are everywhere, they limit your ability to make a living, and truly serve to quash the great American dream of working for yourself. If you want to try to fight yours, or want to know what it means - call our office. We will be happy to help.

Headhunters and Management Recruiters

If you are unhappy with your current job situation you may have had the opportunity to retain the services of a job recruiter or headhunter. For those employees who have not, a job recruiter or headhunter is an individual or company who attempts to match employees searching for a new job with companies in need of employees. Sometimes these recruiters are paid by the individual looking for a new job and sometimes by the employer looking to fill a need.

Using a job recruiter, headhunter, or placement agency is a great idea! However, be aware of the fact these recruiters are usually not attorneys and cannot provide you advice about employment contracts...especially the validity and enforceability of your current non-compete or non-solicitation agreement with your present employer.

Don't end up paying for the services of a headhunter but then learn that you cannot take your "Dream Job" because of your non-compete agreement.

Non-Competes: They Are Everywhere!

I try to get regular exercise, primarily running, biking, and lifting weights. My local athletic club is about 10 minutes from my office and 5 minutes from my house...so I really don't have a good excuse not to work out!

During my last trip to my athletic club I ended up talking with a young college graduate who is working for the club as a personnel trainer. I was shocked to learn the trainer was required to sign a non-compete agreement before being employed by my club. The non-compete prevents the employee from working as a personal trainer within 50 miles of my city for a period of one year after leaving the current position.

I seriously doubt the agreement is enforceable. Why does an athletic club need to prevent a personal trainer from working in the surrounding area? Certainly not to protect a legitimate business interest. I can see if the club wants the employee to agree not to open a competing athletic club within 50 miles for one year...but not to limit their job opportunities in their chosen profession.

Caveat Number 1: Read the employment agreement before signing!

Caveat Number 2: Just because your employer tells you the employment agreement prevents you from working where you want doesn't make it true!

CASE REPORT: FEDERAL COURT IN ALEXANDRIA SIDES WITH EMPLOYEE

On April 15, 2008 Judge Gerald Bruce Lee issued an opinion favorable to the "little guy" in a dispute over the validity of a non-compete clause. The case is Nortec Communications v. Carl Lee-Llacer (USDC, Eastern District of Virginia).

Among other issues, the court was faced the legality and enforceability of a non-compete clause which provided:

Non-Competition. The Employee agrees that he or she shall not, for a period of twelve (12) months after the termination of the employment relationship for any reason:

(a) become employed by or perform services for any existing customer or client of the Company for whom Employee has performed services while employed by the Company-other than on behalf of the Company-if such employment or services relates to the products or services offered by the Company;

(b) directly or indirectly . . . engage in a business in direct competition with the Company within the State of Maryland, Commonwealth of Virginia or the District of Columbia.

Judge Lee found the non-compete unenforceable under Virginia law. Judge Lee held that in situations involving employment with a direct competitor, non-compete clauses which restrict the former employee's performance of functions for his new employer are upheld only to the extent that the proscribed functions are the same functions as were performed for the former employer. In other words, the non-compete clause can only limit the employee from performing the same "functions" he/she performed for the previous employer.

Good news for the "little guy."

ANOTHER WAY TO BEAT THAT NONCOMPETE!

We spend most of our time blogging about ways to get around unfair and oppressive noncompete agreements...and here is another tactic you might enjoy!

Illegal Conduct by Your Employer: That's right! If your employer is engaged in illegal activity and requires you to do the same...you may just have a way to walk out of that job and out of that noncompete agreement. Examples are numerous: (1) a salesperson who is ordered to alter invoices to reflect higher prices than the consumer agreed to may be able to avoid his noncompete as the boss may be guilty of "unclean hands;" (2) a pharmaceutical employee may be able to escape a noncompete by showing she was subject to illegal racial and sexual harassment on the job; (3) how about the medical office worker who knows her physician boss wants the staff to change or alter patient medical or billing records; and (4) the office worker in the accountant's office who is directed to take liberties with client records in such a way as to lower the client's tax liability.

The lesson: If your employer is less than honest and your job places you at risk for legal responsibility for those acts of dishonesty....you may have a good argument to defeat the noncompete!