Non-compete agreements * Be not afraid

Don't let non-compete agreements be your EXCUSE for not exploring your career options.

Here's some advice for navigating the gray area of non-competes.

I’m the president of a “niche” recruiting firm called Gulf Stream Search; our search practices are narrowly focused in the food, beverage, ingredient and flavor industries where “everybody knows everybody”.  

When we “headhunt” candidates, some people tell me they are “not interested, not looking, content where they are” only because they’ve got a non-compete in place.

Otherwise brilliant, rational, and high-integrity people would rather wallow in a lesser state of happiness than run the risk of waking the sleeping giant in their employment contract – the non-compete clause.

I work with individuals who are mulling career changes – I’m deeply entrenched in the job search process and all the hurdles and road blocks associated with job changes. I also have personal experience with non-competes(I’m still alive, unscathed, and all the more happy for it) as well as countless successful placements with candidates who’ve seen through the smoke and mirrors and decided to ply their trade elsewhere, with a clean conscience, a clean record, and in good graces with their former employer.

With that said, I preface my suggestions below by advising you find the best(not the nicest or the friendliest per se) attorney for some guidance – one that a) knows employment law b) has a track record of defending individual employee rights in your state, trial and otherwise.

The second caveat is this, and it’s very simple and rooted in a basic rule that precedes all employment covenants, non-disclosure agreements, employment contracts, and non-competes and it’s this…….DO UNTO OTHERS AS YOU WOULD HAVE DONE UNTO YOU.

Rule #1

Don’t steal from your current employer.

If you have intentions to take intellectual property, customer date, etc. out of spite or what you perceive as mistreatment, then you deserve to be penalized to the full extent of whatever the employment agreement dictates, and then some.

Talk to a therapist, a counselor, a trusted advisor, a recruiter you trust and make sure you’ve either compartmentalized your discontent for your current employer or rid yourself of the poison; individuals that make decisions based on bettering themselves or “attaining gain” are universally more successful than those “running from pain”; joining a new employer only because “it’s better than the hell hole I was at before” is no way to go through life.

Spite is a great motivator at times but it poisons your decision making process, especially when a legal document such as a non-compete is in place. Rid yourself of the poison first.

Rule #2

Don’t share information about clients, products, process technology, prototypes, pipeline detail with prospective employers, prospective peers, or anyone who can use that for gain(financial or otherwise) at the expense of your current employer.

If you do so, whether it’s to make yourself look better in the eyes of your friends, peers, hiring managers, etc., you are violating most agreements and most importantly, the spirit of any employment contract.

“SPIRIT” is important because that’s what a judge or arbitrator is going to consider when it renders a verdict.

Any new employer that asks, insinuates, expects, or creates a condition of your employment based on your “book of business”, knowledge of your past employer’s “inner workings” is a major red flag to you. A relationship that starts off on this foot is destined for bad karma and bad outcomes.  Eject.

Rule #3

Don’t do anything to your past employer(or soon to be past employer) out of spite – don’t talk poorly, don’t take customer lists; in short, don’t be mean, spiteful, vindictive, sneaky, manipulative, or vengeful.

Check your motives now and throughout the process – your feelings and emotions will ebb and flow, but it doesn’t have to impact your actions.

Keep in mind….

Living and working in the United States allows for individuals to pursue their own happiness….for whatever reason….in most any context….as long as it’s not hurtful to anyone else, including a business.

Trade secrets and customers belong to the owners of the company, not you the employee.

That’s a hard pill to swallow, but if you do anything to cause financial harm by impacting your former employer’s ability to make money with these companies or technology or IP, you’ve put yourself square in the sights of a litigious former employer.

If you want to leave your employer you can… long as you do nothing to injure, slander or cause financial loss to your current employer.

Moving forward, your “marketability” to other companies is directly tied to a) your expertise gleaned over your entire career and education b) your industry, product, and technical expertise gleaned over your career AND your personal time and c) your compensation history – the combination of a), b), and c) defines your marketability.

Is there a way around this?

The companies that value YOU the most(and reward you the most) are the ones where you can step in and “hit the ground running” – the least amount of ramp-up, the easiest transition based on any number of factors, NONE OF WHICH INCLUDE YOU DISHING ON YOUR FORMER EMPLOYER!

To those who look for the easier, kinder, non-confrontational path to getting around a non-compete, I often hear “what about if I step outside the industry?”

To do that is to a) reduce your marketability b) reduce your market value and c) reduce your financial contribution to your family, your goals, your retirement, etc. – this “path of least resistance” may hurt your career….hence why many just sit and wallow rather than take control of their career.

I know many people who have recognized and made the concessions of of changing industries, and they’re happier for it, but they did so with a different motive – they were looking for a better quality of life by changing industry and making a clean break.  

Individual rights within the US were not built on punishing those that achieve a different personal happiness, and that’s at the crux of this issue.

You spend a lifetime building up equity in yourself…by osmosis, educational investment, on the job training….and as long as you’re not injuring an employer or stealing what’s not yours, you have the right to “cash in” on this investment, on your terms.

Here’s what happens when you move on……you may get threatened, you may have an icy exit interview, your current boss may not like your explanation on why you’re leaving, you may receive a letter from a corporate attorney, you may be asked to sign an affidavit saying you agree to do what you’ve already agreed to do in your non-compete(my favorite), and you may be looked at with contempt by those you left behind(contempt or jealousy or respect, whatever….), but in the end, if handled appropriately, you’ll be able to live and work happily ever after.

In some circumstances, some addendum may be agreed to that limits interaction with a particular client or product.  Again, as long as you don’t intend or create direct financial harm to a past employer, and conduct yourself accordingly….you’re practicing high character, equitable, and respectful behavior.

So play your career search out – use a recruiter who’ll maintain discretion and help you navigate the waters.

Engage an attorney – preface any dialogue with the condition that you won’t do anything to cause financial loss, slander, or harm to your current employer, and play it out.

Stop using that little clause as an excuse.

There’s more to say and there’s always an exception, but the main takeaway is to not allow this type of agreement to stop you from looking and considering a change – you owe it to yourself.

Every employer I’ve worked with has said a similar thing(I say it too with my staff) – “I want to protect what we’ve worked so hard to build”. So do that – allow everyone, even your previous employer, to pursue and protect their business and everything THEY built up, and move on. As long as you stay clear of doing anything that directly harms that, I encourage you to pursue your career dreams with conviction and a clear conscience.

This is not legal advice - consult an employment attorney(engaged by you, not your prospective employer) with experience in your state to gain more insight into your current employment contract.

Be Iconic®

Bob Pudlock is an executive recruiter and President of Gulf Stream Search, an executive search firm that specializes in the placement of top talent in the food, beverage, ingredient and flavor industries in the US.