[xnn]

I work as a developer at a midsized company of about 700 employees. When hired I signed a no complete clause that bars me from being employeed by a direct competitor for 5 years following my termination.

The term "Direct" seems subjective. I'm looking to apply as a developer in the same industry but it would creating software for a different customer base that is outside the market of the company I work for now.

How do you clarify whats a direct competitor without tipping off your employers you are considering leaving?

How do you feel about non compete clauses and the subjectivity of "Direct" competitor?

[Raynes]

A lawyer.

[Curtis Rutland]

Lawyer really is the only answer. Any advice any of us gives could be wrong and could literally cost you thousands of dollars. Don't trust us, talk to someone who does this for a living.

[no2pencil]

Curtis Rutland, on 24 January 2012 - 07:25 PM, said:

Lawyer really is the only answer.
...
Don't trust us

So not a Lawyer then?

I KID I KID!

[nooblet]

What state are you in? In California, non-competes are usually unenforceable.

[The Architect 2.0]

5 years is kinda long....? i personally wouldn't have signed that. The max I could possibly stand is 1 year, two if i REALLY want that job.

[BenignDesign]

http://www.beckreedr...urvey-Chart.pdf

http://www.myemploym...Non-competition

[Craig328]

Normally, the non-compete clause is there to prevent someone going to their employer's competitor with trade secrets or other such privileged info. However, you said this:

Quote

I work as a developer at a midsized company of about 700 employees

...and that made me wonder just what kind of sooper seekrit info you might could have. You're 1 guy in 700. In general terms, a non-compete clause for someone like you would be difficult to convince a judge to support unless you did, in fact, take trade secrets or other such info with you.

Couple of additional thoughts:

• Five years? Seriously? Even if a judge were inclined to rule in your former employers' favor, five years is a ridiculous amount of time that a former employer can control your employment prospects without paying you.
  
• If you left your employment because the former employer let you go, even if you're in a state where the law says they can still technically enforce a non-compete, it'd be near impossible for them to get a judge to agree. You have a right to make a living.

Several years back now, the company I was working for fired the VP who had hired me and the new guy insisted that we all sign non-compete agreements. He was a detestable fucking prick (not for that but for a variety of other reasons) and I had a very good friend who happened to be an employment law expert. She said that unless the agreement was in consideration of something else (like if they were paying me a bonus or something) that I could and should tell them to go pound sand. I'd been in the position for about 3 years at that point and had always had stellar reviews. Although I was their lead dev and could indeed have taken their entire codebase and database with me had I left to go elsewhere, the point was made that they felt my personal ethics were in question for no reason whatsoever and I let the asshole know quite clearly that I took that inference rather personally.

Turned out they laid me off about 18 months later and had the frickin' gall to suggest that I may still be bound by a non-compete I never signed. It was the single instance in my professional life that I outright told someone what I thought of them and used rather incisive and direct profanity to relay the message. Didn't yell or get upset (I knew about the layoff about a week in advance) but truly enjoyed the opportunity to tell that pompous jackass all about himself and that he had the freedom to sue me if he felt my next attempt to provide for my wife and kids upset him. In fact, I dared him to do so but assured him that he lacked the testicular mass to try and interfere with my professional life at the risk of his personal health.

He got fired for gross incompetence about a year or so later.

Short answer though: by all means, consult a lawyer about it if you're truly considering a move and the move is something you're doing. Each situation and clause wording is unique.

This post has been edited by Craig328: 25 January 2012 - 02:25 PM

[Programmist]

You've probably figured this out already, but never sign a non-compete (always ask for the contract upfront before accepting an offer). I turned down a contract once because I noticed a non-compete clause in the contract and the company refused to remove it. That said, from everything I've heard the non-compete period must be "reasonable" and 5 years sounds way out of bounds. Because of that a lawyer can probably knock enough holes in this agreement to get you out of it. Any contract, no matter how seemingly ironclad can be invalidated. It depends a lot on the judge and the precedent in that state. Some tend to honor signed contracts and others consider the circumstances.

[BenignDesign]

My previous employer required a non-compete that stated I could not work as developer for another company in the state for a period of 2 years after ending my employment with the company. So I took a job in a different state.

[Curtis Rutland]

Quote

My previous employer required a non-compete that stated I could not work as developer for another company in the state for a period of 2 years after ending my employment with the company

Now that's ridiculous. Not "you can't work for a competitor", but "you can't work in your career field at all if it's not going to be for us." I find it hard to believe that would be enforceable.

[Craig328]

Typically it's not. It's handy to keep in mind that most non-compete clauses are something some asshole either thought up because they think it makes their business sound more...I dunno...legitimate? Most of them are cut and paste from the intarwebz. I was presented one once for a job in Florida that said the law governing it was the state of Utah's. Idiot took it direct from some site he found and was too lazy to even read it.

You gotta keep in mind as well that for a former employer to go after you they need to know where you've gone to work next, that the new employer is a competitor and that you're doing work of a similar type that you did for them. Once they have all that then they need to decide whether it's cost effective to hire a lawyer to sue you for, what is essentially, breach of contract.

It's a rare event that one actually gets to that stage and rarer still that a judge would see it the former employer's way unless you actually HAVE taken trade/proprietary secrets to your new competing employer (and they'd probably need to prove that as well).

[Beach_Coder]

1) Unless your current employer's clients, assets, revenue or profits follow you to your new employer you have nothing to worry about. Your current employer can't sue you (successfully) for violating the terms of the non-compete agreement unless they suffer quantifiable damages.
2) If your current (and soon to be former) employer does sue, they will sue your new employer in addition to you. Use their lawyer (unless you have already taken possession of a bunch of loot by way of violating your contract).
3) Regardless of what your agreement says, if you weren't given separate and specific consideration over and above your salary for the exclusive purposes of compensating you for executing the agreement, it isn't worth the paper it was printed on.
4) 5 years? In software development? 50/50 you could walk out the door with everything and they still couldn't sue you. Ridiculously unenforceable.
5) Make sure when you do leave, you keep all of the proprietary things of the current employer within your reach. If they want to dick around, then harvest everything you can (and not a moment before then if your new employer isn't compensating you appropriately). If you are going to get accused of something or even just hassled, make it worth your while. If you have to do the time, might as well commit the crime, if you will.
6) I have more comments, but I'll keep them to myself, other than number 7:
7) Noncompete agreements are a joke, to everyone accept those that sign them with the honest intent to abiding by them. They are worthless. Everyone knows it except the young folks who like to follow the rules work like a dog and get paid dirt. It's nothing more than a tactic your capitalist slime employer uses to make its overworked underpaid employees think they can't leave and so have to sit there and suck on a 3% raise every January and 10% increase in the employee portion of the medical benefits.

[BenignDesign]

Curtis Rutland, on 26 January 2012 - 12:35 PM, said:

Quote

My previous employer required a non-compete that stated I could not work as developer for another company in the state for a period of 2 years after ending my employment with the company

Now that's ridiculous. Not "you can't work for a competitor", but "you can't work in your career field at all if it's not going to be for us." I find it hard to believe that would be enforceable.

When I put in my notice that I was leaving, they called me to the CEO's office and gave me a big speech about how they hated to see me go, but that I needed to know I would always have a job with them if I wanted to return. Then they pulled out my signed non-compete and started a second speech about how the company has top-notch lawyers on retainer and how I might want to reconsider leaving the company "all things considered". There is little in life quite as fantastic as the look on his face when I informed him I would be working in another state and his agreement - and lawyers - were therefore completely irrelevant.

It most likely wouldn't have been enforceable, but is it worth attorney costs and court fees to challenge it and risk losing? Not to me.

Beach_Coder, on 26 January 2012 - 04:42 PM, said:

have to sit there and suck on a 3% raise every January

I wish. I would be thrilled with a 3% raise every year. We've been under a wage freeze here for 3 years and it's likely to continue indefinitely.

This post has been edited by BenignDesign: 27 January 2012 - 07:58 AM

[Curtis Rutland]

Now that does suck. From what I've always heard and read, if you're not getting ~3%, you're losing money due to inflation.