Assistance in deciphering current employers non-compete statement
tycoonbob
Member Posts: 81 ■■□□□□□□□□
Good evening everyone, and I want to thank anyone in advance for shedding in light into this. I also want to make it clear that any advice given on this topic is not legal advice, and if need be I will venture down that path. I just want to get some opinions on this first.
So I have been with my current employer for about 1.5 years now. I love the company, and the people I work with, and the work that I do. I do not love the amount of traveling so much, as well two other reasons that I am looking to leave the company. From here on out, they will be referred to as <Old_Company>. They are a Microsoft partner consulting firm. I work W-2 full time for them, as a Systems Engineering Consultant where I provide Microsoft services (primarily around System Center, Hyper-V, and VDI) to enterprise customers that hire <Old_Company>.
About two months ago I found a job posting for a similar position with another consulting firm with an office in my same city (HQ is in a different city) which I am interested in, and applied for. I had my final interview with them this past Friday, and I think my chances are good. They provide consulting services in the same capacity that I do now, except they target small and medium size businesses, and are NOT just about Microsoft products. I would be working with Microsoft System Center and Hyper-V, but also VMware, EMC/HP/Dell SANs, HP/Dell Servers, Cisco networking, etc. So with that in mind, there is overlap between the two companies, but very little. I will call this new position <New_Company> from here on out. They provide me the opportunity to work with the technology that I want to (virtualization, storage, networking) while being less travel (no weeks out of town at a time), and at least a 20% increase on my base salary (both companies have commission and bonuses).
Now my concern is with the non-compete agreement that I signed 1.5 years ago with <Old_Company>. Here is the clause that has me confused, as well as the recruiter I am working with:
Employee specifically agrees that during employment with <Old_Company> and for a period of one year following termination of employment for any reason whatsoever Employee will not (except on behalf of <Old_Company>), directly or indirectly:
solicit for business or serve or do business with, in a similar role or function to Employee's role or function with <Old_Company>or in any capacity related to the information technology services or products provided by <Old_Company>, any customer of <Old_Company> for whose account Employee provided any services (whether or not billed or of a billable nature) during the one year period immediately preceding termination, and Employee will not influence or attempt to influence any customer of <Old_Company> to terminate or modify any agreement or potential agreement or course of dealing with <Old_Company>
Now when I read the statement, I can read it in two different ways. The first being that I cannot work in a consulting capacity for a period of one year after termination with <Old_Company>, but I don't see that as being logical. The second way I have read it is that I cannot work with any of the clients that I have worked with through <Old_Company> for a period of one year, in any capacity, including consulting.
solicit for business or serve or do business with [SNIPPED] any customer of <Old_Company> for whose account Employee provided any services[...]
in a similar role or function to Employee's role or function with <Old_Company> or in any capacity related to the information technology services or products provided by <Old_Company>
By removing the phrase between the comas, it seems that I would be fine.
It's not clear, and that's usually the goal of these non-competes. I have discussed this with <New_Company> and have pretty well determined that none of the clients I have worked with at <Old_Company> have any relationship with <New_Company>, which makes sense since <Old_Company> targets Enterprise customers and <New_Company> targets SMB.
Thoughts?
Thanks!
So I have been with my current employer for about 1.5 years now. I love the company, and the people I work with, and the work that I do. I do not love the amount of traveling so much, as well two other reasons that I am looking to leave the company. From here on out, they will be referred to as <Old_Company>. They are a Microsoft partner consulting firm. I work W-2 full time for them, as a Systems Engineering Consultant where I provide Microsoft services (primarily around System Center, Hyper-V, and VDI) to enterprise customers that hire <Old_Company>.
About two months ago I found a job posting for a similar position with another consulting firm with an office in my same city (HQ is in a different city) which I am interested in, and applied for. I had my final interview with them this past Friday, and I think my chances are good. They provide consulting services in the same capacity that I do now, except they target small and medium size businesses, and are NOT just about Microsoft products. I would be working with Microsoft System Center and Hyper-V, but also VMware, EMC/HP/Dell SANs, HP/Dell Servers, Cisco networking, etc. So with that in mind, there is overlap between the two companies, but very little. I will call this new position <New_Company> from here on out. They provide me the opportunity to work with the technology that I want to (virtualization, storage, networking) while being less travel (no weeks out of town at a time), and at least a 20% increase on my base salary (both companies have commission and bonuses).
Now my concern is with the non-compete agreement that I signed 1.5 years ago with <Old_Company>. Here is the clause that has me confused, as well as the recruiter I am working with:
Employee specifically agrees that during employment with <Old_Company> and for a period of one year following termination of employment for any reason whatsoever Employee will not (except on behalf of <Old_Company>), directly or indirectly:
solicit for business or serve or do business with, in a similar role or function to Employee's role or function with <Old_Company>or in any capacity related to the information technology services or products provided by <Old_Company>, any customer of <Old_Company> for whose account Employee provided any services (whether or not billed or of a billable nature) during the one year period immediately preceding termination, and Employee will not influence or attempt to influence any customer of <Old_Company> to terminate or modify any agreement or potential agreement or course of dealing with <Old_Company>
Now when I read the statement, I can read it in two different ways. The first being that I cannot work in a consulting capacity for a period of one year after termination with <Old_Company>, but I don't see that as being logical. The second way I have read it is that I cannot work with any of the clients that I have worked with through <Old_Company> for a period of one year, in any capacity, including consulting.
solicit for business or serve or do business with [SNIPPED] any customer of <Old_Company> for whose account Employee provided any services[...]
in a similar role or function to Employee's role or function with <Old_Company> or in any capacity related to the information technology services or products provided by <Old_Company>
By removing the phrase between the comas, it seems that I would be fine.
It's not clear, and that's usually the goal of these non-competes. I have discussed this with <New_Company> and have pretty well determined that none of the clients I have worked with at <Old_Company> have any relationship with <New_Company>, which makes sense since <Old_Company> targets Enterprise customers and <New_Company> targets SMB.
Thoughts?
Thanks!
Comments
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paul78
Member Posts: 3,016 ■■■■■■■■■■
Based on your description, it sounds like you are probably ok. Your best bet is to discuss it with your prospective employer which it sounds you already have.
I noticed that the non-compete has some very restrictive covenants specifically related to "following termination of employment for any reason whatsoever" and "in a similar role of function of Employee's role...". In some states like New York or Massachusetts, your old employer may have a hard time convincing a judge of the reasonableness of these covenants. Some courts do not favor preventing a former employee from working in the same field unless its to protect trade secrets, customer lists, or the former employers intellectual property.
Caveat - My comments are not to be considered legal advice. -
Mrock4
Banned Posts: 2,359 ■■■■■■■■□□
To tag along with paul, you're probably OK. Non-competes have come under growing scrutiny in the last few years with many individuals winning cases against ex-employers who tried to keep them out of work. Not to say you (or anyone) should blatantly violate one, but just something worth noting.
Also, it depends a lot on your relationship with your old employer. If you're leaving on good terms, a lot of companies will not hold you to the non-compete. -
tycoonbob
Member Posts: 81 ■■□□□□□□□□
Thanks for the replies. My relationship with my current company is very good, and I don't think they will cause any issues. I just want to plan for the worse, and try to gauge what could happen. Based off of what I am reading around the internet (you can't lie on the internet, right?), if I was restricted by the NCA it would either be a judge throwing it out because of restrictions on gainful employment, or my current company would drag it out in court costing me a lot of money.
Anything else I am missing? -
wes allen
Member Posts: 540 ■■■■■□□□□□
My, I am not a lawyer, understanding is that as long as you don't actively try to poach your current companies clients, IP, or employees, non compete clauses are not very enforceable, esp. very broad ones like this one. But, I have seen cases where engineers were not allowed to visit any of clients of their old company for a year, even if the client switched to using the new company without any influence from the engineer.
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tycoonbob
Member Posts: 81 ■■□□□□□□□□
My, I am not a lawyer, understanding is that as long as you don't actively try to poach your current companies clients, IP, or employees, non compete clauses are not very enforceable, esp. very broad ones like this one. But, I have seen cases where engineers were not allowed to visit any of clients of their old company for a year, even if the client switched to using the new company without any influence from the engineer.
Thanks for your input, and if that is the case I will be fine. Most of my clients are regional (throughout KY, TN, IN, OH, Southern MI) where as the clients I would be working with at the new company are within 100 miles or so of their office. There should be minimal overlap, if any. If there was overlap, the new company would be fine with me not doing the work for that client.