Non-Compete Agreements, and the other team’s playbook
Our office typically represents employees in business litigation disputes. Yes, we occasionally represent a company but more often than not, we are fighting for an employee who wants to continue work in his or her chosen profession. We do this by evaluating their contracts, the situation and facts, and arguing (when it is appropriate to do so and supported by the law and facts) to Virginia judges that the employee either didn’t violate his or her contract, or that the contract itself is over-broad and unreasonable.
And in doing this work for many years now, we have learned what the typical playbook is for Virginia companies and their attorneys as well. We see the following series of events.
1. Get a confidentiality agreement signed (before or during employment)
2. Get a non-compete signed (before or during employment)
3. Threaten to enforce either should anyone leave
4. If someone leaves and they are valuable, and or we could lose clients, actually send mean nasty lawyer letters
5. If you don’t get some kind of mia colpa, actually sue employee
6. Drop case when legal fees get too high, and reach a new and improved agreement between the parties (ending up typically right where everyone started, just more in debt).
Yes, I am over simplifying but there is a rhythm and predictability in most of these cases.
And when I am not advising Virginia employees on their rights, options, etc., I sometimes enjoy reading from the other side’s play book – aka, the internet. And the internet is a great place if you want to learn what Virginia companies are being told by their lawyers as to when, how to impose restrictive covenants, etc.
One such article http://www.lexology.com/library/detail.aspx?g=27e4df5a-5165-4380-8f40-f7df22aa7cf5 recently caught my attention. In it, the attorney gives some sage legal advice in telling companies to know the state law before drafting a contract with restrictive covenants. Good advice. Every state is different and it is very clear to me when I see a contract that was not written by a Virginia attorney. I can start poking holes in the contract right away – which always increases my client’s options with future negotiations etc.
So, want to know what your company is being told? Read the above article.
Want to know what your rights are under Virginia law, call a Virginia lawyer.