NON COMPETE FORM

Here is a secret. Attorneys sometimes use forms when drafting documents, agreements etc. This of course is frowned upon greatly but it happens.

I looked at one of our “form” sources today to see what was being provided in the way of non-compete agreements.

Employee shall not compete, directly or indirectly, with Employer which renders professional services through __________ (insert speciality), for a period of ___________________ (____________________) years after the expiration or termination of this Agreement within the geographical area having as it center the Employer’s office located at _________ and having as its radius, ___________________ (____________________) miles, by rendering professional services as a __________.

Well I would love to see that language in an agreement because its’ junk – and hopefully in Virginia, unenforceable for a few reasons.

Here is a better one:

Employee agrees that during the term of Employee’s employment and for a period of ___________________ (____________________) years thereafter, Employee shall not: (1) be employed or affiliated with, invest in, or act or work on behalf of any business that competes with or could potentially compete with the Corporation in the ___________________ area, which shall be defined as the Counties/Cities of ___________________; (2) solicit or attempt to solicit business from any client or customer of the Corporation, with whom Employee has had dealings or contact by reason of Employee’s employment; or (3) disrupt, impair or interfere with the current or prospective business of the Corporation in any manner including inducing any employee, client or source of referral of business to sever their relationship with the Corporation or otherwise adversely affect the business of the Corporation. It is the intention of the parties that these covenants are intended to provide the Corporation with the full protection against competition by Employee should Employee leave the employment of the Corporation.

Yikes – the second one is better written, but would not apply in many industries. Nor does it provide an out if employee is fired, etc.

So if you are asked to sign a non-compete, check – does it look like example 1 or 2 from above? If so – why would your employer or his attorney throw a form before you and expect a signature. Might be time to discuss the agreement before you sign it!

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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.