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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11047
Experience:  Significant experience in all areas of employment law.
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I need legal advice on a non-compete employment agreement

Customer Question

I need legal advice on a non-compete employment agreement included in a new job offer.
Submitted: 15 days ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 15 days ago.

Hello and welcome. What specifically is your question or questions regarding the non-compete? I very much look forward to helping you on this matter.

Customer: replied 15 days ago.
I need to sign an employment agreement (attached) to accept a new job offer. I would like your opinion of the non-compete clause. It seems these are always very general and who Company defines as competitor today, may change in the future. How can this be revised to be more specific? I'm available for a call if better.The job is a Data Engineer for a small web/marketing analytics company."Non-Competition and Non-Solicitation. Given the confidential and proprietary nature of Confidential Information
that may be disclosed by Company to Employee, during the Employment Term and for a period of two (2) years
thereafter, Employee shall not, directly or indirectly, without the prior written consent of Company: (i) provide
services similar to the services provided to Company to any customer of Company (which are not billed through
Company) or any person or entity who or which is a competitor of Company; (ii) research or develop any service,
product, process or machine which is similar to a service, product, process or machine of Company; (iii) solicit,
induce or attempt to induce any employee of Company to leave the employ of Company, or engage as an
employee, independent contractor, or otherwise, any employee of Company; (iv) solicit, induce or attempt to
induce any customer, supplier, licensee, or business relation of Company to cease doing or reduce business with
Company, or in any way interfere with the relationship between any customer, supplier, licensee, or business
relation of Company; or (v) solicit the business or become an employee or independent contractor of any customer
of Company, with respect to products or services which compete in whole or in part with the products or services
of Company."
Expert:  Patrick, Esq. replied 15 days ago.

Thank you. These clauses are purposefully broad because very often the employer doesn't know of every company that is a competitor, and new companies can be created after the agreement is signed which later turn out to be competitors. So, ,to be honest, I'm really not sure how the agreement can be that much more specific without defeating the purpose of the agreement from your employer's perspective. Basically, you need to operate with the understanding that if you do anything to "compete" with this employer after you leave, which essentially means anything that could potentially harm their business, you will likely be in violation of the non-compete.

Rather than negotiating how "competitor" is defined, which is just about impossible, you could focus your efforts on negotiating the geographic scope of the non-compete, which is much easier to define. For example, you could propose that it only be in effect within the state of Missouri, or within a 500 mile radius. You can also focus on negotiating the duration--for example, one year instead of two. Lastly, if the terms themselves are not negotiable, you can negotiate a signon bonus that this employer must pay as a condition of you signing the non-compete. All of these things are going to be much easier than narrowing down the scope of what it means to compete and what itself constitutes a violation of the agreement.

If I can clarify anything at all for you, please do not hesitate to ask. It is my pleasure to assist you further if necessary....

Customer: replied 13 days ago.
I have two primary concerns.
1) is the 2 year period
2) this clause "(ii) research or develop any service, product, process or machine which is similar to a service, product, process or machine of Company;" This is a problem for me because this position is a data engineer position. There will be many processes I design that are common throughout many industries. This phrase is too broad in my opinion.What are your thoughts on these items?
Expert:  Patrick, Esq. replied 13 days ago.

Two years is fairly standard, but as noted above could be negotiated down to one. The clause about researching and developing is something that you could propose eliminating. It should be sufficient to restrict you from working with a competitor, as it is only a competitor who would pay for you to research/develop a product or service that is similar to what your employer sells anyway. Therefore you could argue that the clause is essentially redundant.

I hope this helps. Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service (using the stars at the top of the page) so that I may receive credit for assisting you.

Very best wishes.

Expert:  Patrick, Esq. replied 13 days ago.

Was there anything else I can do for you before we conclude, Tom?

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