With employers aggressively protecting customers and trade-secrets with non-compete agreements, placement and human resource professionals will continue to encounter potential candidates/employees that have non-compete agreements and other restrictive covenants.
Every employment interview should include exploration into these issues.
Below are some suggested questions/considerations:
- Has the candidate signed a non-compete, non-solicitation, or non-disclosure agreement? If so, request a copy.
- Does the scope of the non-compete conflict with the proposed employment? Is the candidate working in the same industry? Does the scope of the non-compete include the proposed geographic location? What is the duration of the non-compete?
- Is there a choice of law or venue provision in the non-compete? The enforceability of a non-compete will vary from state to state.
- Is the non-compete enforceable? It may not be, but the best bet is to talk to a lawyer.
- Gather intelligence: has the former employer sued to enforce its non-compete previously?
- Is there any potential that the candidate could resolve the non-compete with a buy-out or some other agreement?
- Is litigation an acceptable risk for the new employer?
- If there is a non-solicit, can the employee work within the parameters of the non-solicit? Many times non-solicits are simply non-competes with a different name. Some non-solicits only prevent the former employee from contacting former customers. In that case, there is nothing that prevents the customer from contacting the employee.
- Remember, that any communications you have with a prospective employee might be subject to production in a lawsuit. Be smart about email.
Going through the time and expense of hiring or placing someone to find out their ex-employer has filed a non-compete lawsuit would be devastating. The questions above are a good starting point for screening, but a lawyer should always be consulted.
