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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41221
Experience:  I provide employment and discrimination law advice in my own practice.
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I have a non compete in a sales role. It states that if I

Customer Question

I have a non compete in a sales role. It states that if I leave or are ended for any reason that I can not solicit a client or take anyone from a client (I'm in aiT Staffing) for 2 years. It does say I can work for a competitor. It also says I can not solicit any ex isolating company employees. However it clarifies that the solicitation clause if ok if I as an employee initiate the conversation.
This is important as I'm looking to get a job with an ex boss that is now running a competing organization . He signed the same non compete and has been gone for 9 months now.
Does it seem feasible that I can be hired with no penalty? Is 2 years reasonable? There is nothing proprietary as all methods are made open to the public. And since I asked for a job and initiated the process, he did not solicit me to leave? Also, if I'm terminated...does that make the non compete void?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

There is a misconception that when someone is terminated or fired, the non-compete goes away. That is false, regardless on whether or not you quit on your own or are terminated, the non-compete remains. Two years is reasonable, and although he was gone for 9 months, if your ex-boss is bound by the same contract, he is potentially in violation if he attempts to hire you. Here the past employer can sue you both for breach of non-compete and pursue you both for damages. I do apologize but unless your current employer agrees to waive this agreement, you may be in violation.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
See attached
Expert:  Dimitry K., Esq. replied 1 year ago.

Hi,

I reviewed the language. Whomever wrote it really did it in a very confusing manner. I am unclear who is "Employee" and who is "LRS employee" (I am presuming the former is you, and the latter is the ex-employee, or your boss). Based on the language it appears if the other person starts the conversation, you are not in violation. But then THAT person is in violation, as they are soliciting. Likewise, if you start the conversation, then you are soliciting, and he isn't, so then you are in violation as per 4(b)(2). In either case they may have a claim against you for damages.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
Under definitions it's says Emoloyee is me.
So if I read that correctly, I'm not in violation as Employee, if I discuss employment outside of LRS with an existing employee as long as the existing employee initiated the discussion.
On the converse side. The ex employees would read the same. He would not be in violation as Emoloyee in his non compete since I as that existing employee initiated the conversation.
Not sure what on the date refers to. What if I seek employee meant on a different day?
Expert:  Dimitry K., Esq. replied 1 year ago.

Hi,

To answer:

Under definitions it's says Emoloyee is me. So if I read that correctly, I'm not in violation as Employee, if I discuss employment outside of LRS with an existing employee as long as the existing employee initiated the discussion.

Yes, that is exactly right. But the existing employee may be in violation.

On the converse side. The ex employees would read the same. He would not be in violation as Emoloyee in his non compete since I as that existing employee initiated the conversation.

Yes, he would not be in violation, but you may be.

Not sure what on the date refers to. What if I seek employee meant on a different day?

I am sorry, I do not understand--what are you referring to?

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
4b2 mentions "on the date" of termination
Expert:  Dimitry K., Esq. replied 1 year ago.

Right, because that is when the 2 years begin to run.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
Since it notes I can go work for a competitor. And since it notes that an ex Emoloyee would not be in violation if I initiate the conversation/contact...where does it say I'm in violation if I do go work for them. I see that it says I won't solicit an existing employee, but I wouldn't be. I'd be leaving on my own will to work elsewhere on other accounts leaving les accts alone.
Expert:  Dimitry K., Esq. replied 1 year ago.

Hi,

You wouldn't be in violation, but the ex-boss would be, at least potentially. Likewise, it may be seen as a violation if they claim that you are in violation of 4(b)(1), that is, you are directly competing. That is the non-compete portion, so while you won't be liable for soliciting, you can still be pursued potentially for competing directly against the current employer. While you can work for a competitor, you cannot compete directly once you leave this employer for a period of two years.

Please take care and be well, and good luck to you. I will be logging off to get some rest but will return later on in the morning. Should you respond, there may be a delay with my assistance. Otherwise, if satisfied, kindly do not forget to positively rate. Thank you!

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
I appreciate the assistance and want to be sure to have some clear lines before I push forward. I have scheduled follow up interviews and will need to complete a 30-60-90 project, so in due diligence of my time - I'm looking for the best advice I can get.I have attached the complete document since I am off my mobile now. Below are the specific items I'm looking at for answers.1. As a current LRS Employee, I can leave to work for a competitor as long as I do not 'directly compete'? Meaning, I can still sell in the same space of services as long as I do not engage an existing client or attempt to remove a resource from an existing client for 2 years from term date. Likewise, I will not utilize any 'proprietary' information. Considering all of my work is done with resources that are available to the public such as DiscoverOrg, LinkedIn, Online Job Posting Sources like Indeed, and various other resources such as Chamber of Commerce lists - there is not a true proprietary portion to consider unless I were to somehow use the CRM database that I currently have access to..2. Can I work with or for an ex-employee of LRS if I am the one as a current employee, denoted as 'LRS employee' in the document, that initiates the contact/conversation. Reading it as 'Employee' being defined as the person that signed the document - it says Employee can discuss employment is LRS employee initiates the conversation. Of which in my scenario, I initiated the conversation.3. No where do I see where I can be held for anything in regards ***** ***** for an ex-LRS employee. It just says, I can work for a competitor and can not directly compete in accounts. And as noted above, an ex-LRS employee can hire me, as long as I initiated the conversation?4. To be clear on language. There is no difference in the agreement between resignation, suspension, or termination. If I were released for no-cause or for cause would not matter?5. If this were to be a route I chose, to go work for a competitor and with an ex-LRS employee. I obviously have to provide this document to the new employer. Would it be diligent on my part to speak with LRS upon leaving and be clear on where I am going and discuss the understanding of the document - and if I have it, provide a legal letter of understanding from an employment lawyer? If that is a yes, what should that look like and any advise on said letter?6. What criteria would I need to deem this document invalid?Thank you for the prompt response.Casey Barksdale
Expert:  Dimitry K., Esq. replied 1 year ago.

My pleasure, truly!

Just as an FYI, since I am not your attorney, I cannot provide you with 'legal advice'. While I can assist you, I cannot do so based on 'legal advice', as what I provide is legal information.

You asked:

1. As a current LRS Employee, I can leave to work for a competitor as long as I do not 'directly compete'? Meaning, I can still sell in the same space of services as long as I do not engage an existing client or attempt to remove a resource from an existing client for 2 years from term date. Likewise, I will not utilize any 'proprietary' information. Considering all of my work is done with resources that are available to the public such as DiscoverOrg, LinkedIn, Online Job Posting Sources like Indeed, and various other resources such as Chamber of Commerce lists - there is not a true proprietary portion to consider unless I were to somehow use the CRM database that I currently have access to..

Provided there is no direct competition, that is correct. A non-compete cannot keep you from working at all,it can just reasonably restrict some manner of employment.

2. Can I work with or for an ex-employee of LRS if I am the one as a current employee, denoted as 'LRS employee' in the document, that initiates the contact/conversation. Reading it as 'Employee' being defined as the person that signed the document - it says Employee can discuss employment is LRS employee initiates the conversation. Of which in my scenario, I initiated the conversation.

Provided you do not violate other criteria listed, it appears permissible.

3. No where do I see where I can be held for anything in regards ***** ***** for an ex-LRS employee. It just says, I can work for a competitor and can not directly compete in accounts. And as noted above, an ex-LRS employee can hire me, as long as I initiated the conversation?

Yes, so long as you do not work on similar projects for the new employer.

4. To be clear on language. There is no difference in the agreement between resignation, suspension, or termination. If I were released for no-cause or for cause would not matter?

Correct.

5. If this were to be a route I chose, to go work for a competitor and with an ex-LRS employee. I obviously have to provide this document to the new employer. Would it be diligent on my part to speak with LRS upon leaving and be clear on where I am going and discuss the understanding of the document - and if I have it, provide a legal letter of understanding from an employment lawyer? If that is a yes, what should that look like and any advise on said letter?

That is up to you, but it would be prudent to advise the new employer of your potential restrictions, and perhaps have their legal department review the non-compete. That is because if you are infringing, the new employer may be pursued for damages as well. But speaking with the current employer is really not as important as speaking with the future employer.

6. What criteria would I need to deem this document invalid?

That is a question that is far beyond the scope of your post. With all due respect there are potentially dozens of grounds under which the document can be challenged, but there is no 'one size fits all'. I really cannot give you a full breakdown and summary without additional research, and that would no longer be reasonable based on the type of question you posted initially.

Sincerely,

Dimitry, Esq.

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