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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41220
Experience:  I provide employment and discrimination law advice in my own practice.
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I signed a non compete clause as an independent contractor

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I signed a non compete clause as an independent contractor as a dogwalker with my employer upon my hiring four years ago. Last year my employer changed me to employee status. Is my non compete still enforceable? Can I take some of my clients and start my own business without any fear that legal action being taken against me?
Thank you for your question. I am a New Jersey licensed professional. Please permit me to assist you with your concerns.

That is a very good question. Did you formally sign any document with the employer pertaining to your change of status? Also, what is the length of time of the non-compete as it was signed while you were an independent contractor?
Customer: replied 3 years ago.

I think I may have signed something pertaining to my employee status. But I didn't sign any more noncompete besides the first one. My first noncompete basically said that I couldn't take any of my company's clients for 6 months but it was OK if I walk dogs on my own/for another company in the same town. I really want to start my own business and take my best clients with me but I don't want to get sued. Even though a part of me thinks that my boss is too cheap to sue or that her case wouldn't be valid.

Thank you for your follow-up, Will.

To be honest I do not see this agreement as being an issue. Here is why:

The agreement itself, and the clause, ARE valid. But they are valid for contractors, not employees. If that agreement never referred to you as an employee but as a contractor, you can claim that this clause is invalid because you never signed an update. Instead that contract began running the moment you stopped being a contractor. So if you were an employee longer than 6 months, the non-compete simply expired and is no longer something that could be used to claim that you are contractually bound to the clause limitations.

As for taking clients with you, there is a way to do so with minimal risk. You can TELL the clients that you are leaving and starting your own company, as well as provide them with the particulars...but never invite them to follow you. if they wish to do so, then it is not a violation but is instead permitted. This way you cannot be accused of solicitation as a client can follow you on their own, and with no evidence that you would even violate the spirit of the non-compete.

Good luck.

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