Should I sign a non-compete when I am bringing skills to the job to create new function there?

We have either directly or indirectly assisted clients in negotiating restrictions on proposed non-competes where the individual was being hired for their depth of knowledge and experience in a specific area. Your situation is not unique and you should use this as an opportunity to discuss what terms would apply and for how long or at all based upon how you leave at some point in the future.

Your reaction is correct and some of Neil suggestions are options that you can include in the discussions. I would definitely get legal counsel to at least review and advise you during this part of the process.

posted by Bruce Elfvin  |  Sep 22, 2009 10:18 AM [EST]

For the reasons that you identify, DO NOT sign away your ability to use your existing, specific skills. This may meant that you have to walk away from this opportunity.

Offering to sign a non-disclosure agreement is responsible. The duration of the NDA should reflect the length of time that the information will remain valuable as long as it is kept secret. Under Ohio's Trade Secrets Act, the statutory prohibition against using proprietary information has no end date. In other words, the duration is forever.

Here is an article on Trade Secrets: http://www.myemploymentlawyer.com/wiki/Trade-Secrets-Overview.htm

If you really want to explore this opportunity but the new employer is stuck on a non-compete, consider the following as compromises:

- agree not to solicit, accept or interfere with those customers that you develop. The employer has a legitimate expectation that it will not lose those customers when you leave.

- request severance pay for the duration of the non-compete. The new employer will probably not agree to this, but it will starkly illustrate the cost to you of signing that document.

Best regards,

Neil.

posted by Neil Klingshirn  |  Sep 22, 2009 08:51 AM [EST]