How Can I Get Out of a Non-Compete?

By Nina Kaufman

entrepreneur daily

Opinions expressed by Entrepreneur contributors are their own.

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).

Nina L. Kaufman, Esq. is an award-winning New York City attorney, edutainer and author. Under her Ask The Business Lawyer brand, she reaches thousands of entrepreneurs and small business owners with her legal services, professional speaking, information products, and LexAppeal weekly ezine. She also writes the Making It Legal blog.

Want to be an Entrepreneur Leadership Network contributor? Apply now to join.

Editor's Pick

Related Topics

Business News

He 'Accidentally Discovered' a Semi-Passive Side Hustle in College — Now He's on Track to Make More Than $500,000 This Year

When a lack of funding put a stop to Zach Downey's pizza vending machines, he stumbled upon another lucrative idea.

Business Ideas

55 Small Business Ideas to Start in 2024

We put together a list of the best, most profitable small business ideas for entrepreneurs to pursue in 2024.

Business News

Apple Faces Class Action Lawsuit Over iCloud's Alleged 'Enormous Structural Advantage'

The lawsuit asserts that cloud storage on iPhones would be "better, safer, cheaper, and more prevalent" without Apple's policies.

Business News

The Infamous Diner Booth from 'The Sopranos' Finale Is Up for Auction — And Some Fans Are Livid: 'Let Future Generations Enjoy'

The booth is still in the restaurant and ice cream shop in New Jersey where the finale was filmed.

Growing a Business

The Truth About Achieving Exponential Growth in Business, Exposed

What's preventing your business from scaling exponentially? Learn about the factors, and see how you can achieve your desired results.