A PROMISE – NOT BOUND BY NON-COMPETE

A friend of mine is on the job hunt – and she was on a few private, non-profit, state and federal job websites this week. On one site (she can’t remember which), before you could apply for a job, post a resume or even view the postings, you had to confirm that the following statement was true: I am not bound by or limited by a non-competition agreement.

When told of this, I was very surprised. Also, concerned about some of the ethical and legal issues this threshold statement creates.

In Virginia, a non-compete must first and foremost, be held to be reasonable. If a court finds it to be unreasonable, you are not bound by it. Also, the employer must prove they have been damaged. You could be in breach of the agreement, but if the employer has not been damaged, they may not get an award (although they could still seek an injunction for you to stop working).

And the tricky part, is that you don’t have an “unreasonable” contract until a Court says it is unreasonable.

(1) DOES APPLYING FOR JOB 2 – BREACH AGREEMENT WITH EMPLOYER 1?
So are you in breach of a non-compete for applying for another job? I DOUBT IT. So why would a future employer ask you to make a statement about it? Likely the motivation is both financial. Who wants to invest hours of interview and or training time in you, only to find out you are bound by a contract, not to take the job. Also, what employer wants their new employee wrapped up in litigation – justified or not.

(2) IS IT LEGAL TO ASK IF YOU HAVE A NON-COMPETE?
So can they ask if you have a non-compete, legally? SURE they can. There are few questions off limits in a job interview – questions about your religion, whether you are married, in some states your sexual orientation… but I don’t know of a single state that prohibits an employer from asking you either before or after an application is filed – DO YOU HAVE A NON-COMPETE? Imagine the awkwardness of not knowing, and having job #2 call job #1 for a reference. I am certain this has happened before.

(3) DO I HAVE TO DISCLOSE I HAVE A NON-COMPETE?
It’s just a little white lie if I say no, right? If you share incorrect information in a job interview or application process, and are hired, that is certainly reason enough to un-hire you. So is your new employer going to sue you for not disclosing that fact? I doubt it (unless it was part of the contract and they were damaged) – but it sure isn’t a good way to start a new business relationship.

So bottom line – Be aware that when you sign a non-compete, there are consequences. And now, employers realize this, and are looking for employees with as little “baggage as possible.”

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Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.