How Can I Get Out of a Non-Compete?

I signed a two-year non-compete agreement last November with a company for which I used to work. I haven't been doing much since leaving that position. Now I have a can't-miss opportunity to do similar work for a competitor company. Is there anything I can do that would enable me to take this job? How can I determine whether my non-compete has a loophole, or whether my former employer might be willing to let me off the hook? Does that ever happen?

Non-competes are deceptive things. They may appear iron-clad, but you have to look at the terms very carefully to see whether they are “all sizzle and no steak.” Courts respect the fact that companies need to protect the time, money and effort that they place into training their employees. There are few things more infuriating and damaging to a company than when an employee defects and goes to a competitor.

However, courts are loathe to keep people from gainful employment. Therefore, they look at non-compete clauses very carefully. They consider the type of work you were doing, and the access to information that you had. With that in mind, is the time prohibition, the geographic scope and the description of what constitutes a "competitor" reasonable under the circumstances? The longer the time frame, the wider the territory, and the less specialized your position, the greater the likelihood that a court will not enforce the provision.

As an example, if you were a nuclear physicist with access to the company's top trade secrets for the past 15 years, your defection to a competitor could greatly harm the company, and the court would be likely to uphold a non-compete. However, if you were a junior receptionist for the same company for the past two years, it's less likely that a restrictive non-compete would be upheld. To get a sense of whether there's any "loophole" in your agreement, it would be best to speak to an attorney who specializes in reviewing these kinds of agreements from the perspective of the employee (and not the employer).