Non-Compete within NDA

[smoothie]

Hello,

I am in the process of considering a new job. However I just noticed the following verbiage within the NDA I signed with my current employer.

“While employed by the company, the employee shall devote all of his/her business time, attention, skill and effort to the faithful performance of his/her duties for the company. In addition, for the period of his/her employment and for a period of 6 months after the termination or cessation of employees’ employment for any reason, the employee will not, in the geographic areas that the company or any of its subsidiaries does business or has done business at the time of employee’s departure, directly or indirectly:

Engage in any business or enterprise (whether as owner, partner, office, director, employee, consultant, investor, or lender) this is competitive with the Company’s business, including but not limited to any business or enterprise that develops, manufactures, markets, or sells any product or service that competes with any product or service developed, manufactured, marketed, or sold, or planned to be developed, manufactured or sold by the company or any of its subsidiaries while the employee was employed by the company”

Can I consider this invalid and accept the new role because of the following reasons:

1. My current employer is located in Boston, and the new role is in Colorado. The current employer sells products world wide, so technically according to the non-compete above I couldn’t work anywhere. In my opinion this is too wide of a geographic area and in not valid

2. The new employer does sell a competing product. However the new employer has over 200 products they sell, and the new role would be in a division that does not sell the competing product. I feel the NDA verbiage is too vague and prevents me the right to earn a living

3. Seeing that this is contained within an NDA, there is no proof that I have shared intellectual property, only that I would have the potential to do so. I would be guilty until proven innocent.

Any thoughts or advice would be sincerely appreciated!

 

[swalsh411]

Sounds faaaaaaaaaaaar too broad by a long margin to be enforceable but I am not an attorney. If you really want to know for sure you should speak with one. May cost you something but it would be worth the peace of mind.

 

[latigo]

Hello,

I am in the process of considering a new job. However I just noticed the following verbiage within the NDA I signed with my current employer.

“While employed by the company, the employee shall devote all of his/her business time, attention, skill and effort to the faithful performance of his/her duties for the company. In addition, for the period of his/her employment and for a period of 6 months after the termination or cessation of employees’ employment for any reason, the employee will not, in the geographic areas that the company or any of its subsidiaries does business or has done business at the time of employee’s departure, directly or indirectly:

Engage in any business or enterprise (whether as owner, partner, office, director, employee, consultant, investor, or lender) this is competitive with the Company’s business, including but not limited to any business or enterprise that develops, manufactures, markets, or sells any product or service that competes with any product or service developed, manufactured, marketed, or sold, or planned to be developed, manufactured or sold by the company or any of its subsidiaries while the employee was employed by the company”

Can I consider this invalid and accept the new role because of the following reasons:

1. My current employer is located in Boston, and the new role is in Colorado. The current employer sells products world wide, so technically according to the non-compete above I couldn’t work anywhere. In my opinion this is too wide of a geographic area and in not valid

2. The new employer does sell a competing product. However the new employer has over 200 products they sell, and the new role would be in a division that does not sell the competing product. I feel the NDA verbiage is too vague and prevents me the right to earn a living

3. Seeing that this is contained within an NDA, there is no proof that I have shared intellectual property, only that I would have the potential to do so. I would be guilty until proven innocent.

Any thoughts or advice would be sincerely appreciated!

Could it be an oversight that they only included planet Earth?

Whatever, like you have wisely suggested go about your business as if the covenant didn't exist. No court would enforce such a sweeping restriction and especially not in Colorado. Like California, Colorado does not care much for them.

Colorado Revised Statutes Section 8-2-113 (l973) . Unlawful to intimidate worker - agreement not to compete

(1) It shall be unlawful to use force, threats, or other means of intimidation to prevent any person from engaging in any lawful occupation at any place he sees fit.

(2) Any covenant not to compete which restricts the right of any person to receive compensation for performance of skilled or unskilled labor for any employer shall be void, . . . .

 

[Mass_Shyster]

1. My current employer is located in Boston, and the new role is in Colorado.

Where do you work for your current employer? This is probably where the issue lies. There was a highly regarded non-compete case in Massachusetts a few years ago. The judge found the original non-compete was overbroad since it prohibited working in the same industry for two years anywhere in the US. She ended up reforming the contract to include only the territory where the salesman had worked, shortened it to one year, and limited it to the specific type of products he had been selling.

One issue that came up was actually finding out that the salesman had gone to work for a competitor. He had been working for six months contacting his former customers before the former employer found out. The former employer spent close to $100,000 on legal fees enforcing the non-compete. I suspect the defendant spent a similar amount, although his legal fees were paid by the new employer.

 

[smoothie]

Thanks All!

I am currently located in MA and that is where my employer is also. The new role would be in Colorado.