THE QUESTION
After leaving my job as a field sales representative, I was offered a job with the competition. However, my original employment agreement stipulated that I could not work with a competitor for six months after leaving the company. I have a family to feed and am thinking of taking the job. What would be the consequences of violating the non-compete clause?
THE FIRST ANSWER
Daniel Lublin
Partner at Whitten & Lublin employment lawyers, Toronto
Before you look at potential consequences for violating the non-compete, you should consider whether that non-compete is even binding to begin with. Often, employers take a "kitchen sink" approach to drafting non-compete agreements, seeking to prevent you from any form of possibly competitive behaviour.
However, instead of gaining more protection, these employers often get none at all. A valid and binding non-compete must be completely limited in its geographic location, scope of application and timeline.
I have won various cases by pointing out that the non-compete was not even necessary to begin with. If there is a less restrictive method to protect the employer's interest, then this is what it should have proposed.
Finally, like any contract, a non-compete is only enforceable if you receive something in exchange for signing it and were not under duress. If any of these challenges to the non-compete have merit, a court should not enforce its terms.
However, in those situations where the non-compete was properly drafted and implemented, a court could award damages against you for any actual losses suffered by your employer, or in rare cases, a court will order that you are prevented from working for the competitor for the duration of the clause.
THE SECOND ANSWER
Colleen Clarke
Career specialist and corporate trainer, Colleen Clarke & Associates, Toronto
When you took your previous job, you knew of the non-compete clause; then you left the job, willingly, I assume. Before you sign on with the competitor, be sure there isn't another non-compete clause or other conditions you couldn't live with in years to come. Is the competitor aware you are considering their offer with a non-compete? Are they willing to hire someone who is violating an employment contract?
When clients tell me they are desperate to accept a position, they often overlook red flags. Yes, it is necessary to feed the family, but making a forced decision can result in hefty legal fees or early termination rather than a salary and bonuses.
Do an assessment of your situation. How long have you been out of work? What is the maximum length of time you can be unemployed? Are you rushing into this offer out of fear? What is the market like for sales reps this upcoming quarter? How seriously have you been job searching? A bird in the hand isn't always worth two in the bush.
Got a burning issue at work? Need help navigating that mine field? Let our Nine To Five experts help solve your dilemma. E-mail your questions to ninetofive@globeandmail.com
Daniel Lublin
Colleen Clarke