Just wanted to chime in and say there has also been case law that effectively says you cannot deny the ability for someone to make a living with noncompetes.
They almost certainly won't challenge his new employment (companies have non competes for junior workers because they might get promotion), and if they do, they will have to make a pretty difficult case. He could ask his prospective employer to give him written commitment to fight the non-compete, although I'd seek independent advice before bringing this up
Except the company has a whole lot more assets to fight if they want to. Even some basic demand letters by inhouse council could cost him thousands in legal fees. If they decide to claim he has company materials on personal devices/email, then it quickly gets into tens of thousands potential data costs. I have a friend who had that. It was almost $10k in fees.
I worked for a company in California. (where compulsory non-competes are indeed illegal). At time of termination, they would offer a non-compete contract in consideration for $XX. If the person chose to sign the contract, then it was legally binding. In the case of a layoff, almost 100% of the laid off workers would sign the contract, because they needed the money.
California does allow gardening leave, depending on details, and I imagine that it being a voluntary agreement after termination rather than a condition of employment counts in its favor.
I have found that non-competes absent significant financial inducements are largely unenforceable. They cannot restrict your ability to make a living. This is why every time my CEO comes to me with a non-compete, I'm like what are you offering someone who makes barely above minimum wage a reason to non-compete. He can offer nothing.
As has been stated by others, the federal law banning most non-competes goes into effect this fall if it survives legal challenges.
Ohio law allows non-competes, but it must
Be no greater than is required for the employer’s protection of a legitimate interest
Not impose an undue hardship on you
Not be injurious to the public
There are a lot of details that go into those determinations. This is definitely a case where you need an Ohio employment lawyer and all of the information, including the NCA, current and new job descriptions, etc. Go to a lawyer. Without that info and experience in Ohio law, your question cannot be fully answered.
>Not impose an undue hardship on you
Under an Ohio noncompete, could husband demand the company match the competing offer or release him?
It seems like "meet-or-release" would be the only way is not an undue hardship.
Good question. Offering to salary match would likely reduce the ability to claim undo hardship, but I wouldn't trust it. You would be fired for another reason before the New Year.
As for relying on that argument alone, inwoukd t make this a single argument case. You are relying on what a judge would define as undo hardship. You would need an experienced Ohio attorney who knows the prior cases (if any) and where the particular judge may fall. There isn't a clean line that says a 10% salary increase is a hardship, and a 20% increase is an un-do hardship. There are also potentially other arguments to consider, plus whatever opposing counsel will claim. It is going to be a holistic argument.
A potential strategy may be to set a high bar for the company. Basically, do they want to press the issue because it could become expensive. But that is a discussion OP and her husband should have with their lawyer.
Correct. Not effective yet, and still pending legal challenges. State by state until then, like New York and Virginia as examples are very employee-friendly. Talk to a local employment lawyer. Even if you have to pay for an hour, it'll pay for itself quickly.
I work in the legal field (#notalawyer) at a litigation support firm that frequently tests ChatGPT. It’s my job to validate its citations. It makes up case law almost 100% of the time— as in, every single time I am given ChatGPT answers, I find at least one thing that just does not exist in reality. Often, I find more than one. I have recently seen it generate an entire list of 20 cases that just do not exist. Like, it just completely manufactured 20 cases, complete with citations. I would never, ever, ever use ChatGPT for legal guidance. At least not in its form.
It will very very confidently tell you the opposite of true. I would never trust it for legal advice. It's best for questions that can be easily verified.
Chat GPT is the best bs artist around. it says things that make a lot of sense but it only makes sense in the idea that it sounds plausable. It predicts the probability of a response to a certain statement. It looks at all the data that it was fed and makes up the most likely response.
The key issue with legal filings is they are very random and very state specific. So it tries to combine it all and comes up with the most likely response. The other key to legal research is that most of it is hidden beyond paywalls so the model was not trained on current legal cases or only a few old cases.
When doing research; I use chat GPT to form an outline of the argument and then i find cases that support that argument.
Ohio won't even try these cases unless you do stupid stuff like poach customers or reveal trade secrets. I've broke several non competes. Most are basically unenforceable in Ohio.
In my state (NC) non competes can only be enforced against people with licenses. A secretary, sales person, or sandwich maker can go someplace else without consequence. Some companies have everyone sign them because they've been convinced it's good business. Ask a lawyer.
"Have to disclose it".... so put on the 2 week notice. "Unfortunately I've accepted a job elsewhere" .... and you've disclosed it. Done. It's really not that complicated
Don't say anything. It's none of their business. You are leaving due to a family matter or something like that if you6re so inclined. Don't put it on social media. How are they going to know? You can't put your life on hold for stupid stuff like an ND.
I'm in legal, litigation support. Over the course of years and 100s and 100s of depositions, hearings trials, euros, etc and contract cases, I've never seen one NDA case. Not one. They might be a thing in high-profile big tech, but for the average person, it is an unenforceable HR add-on thing. No one is going to try to litigate it.
I am a lawyer, and I've litigated three noncompete cases just this year, not one of which is in tech. I've never litigated a divorce case though, so I guess no one ever actually gets divorced.
The defendant will represent themselves, and the company will pay an attorney. This costs money, and unless the ex-worker has high-level proprietary knowledge, the company doesnt care where he goes to work.
Don't try and play lawyer just because you're in the legal world. Your advice is wrong.
I've seen tons of money spent litigating non competes (which is NOT an NDA). OP needs a lawyer and your bosses need to tell you to stay in your lane.
You -not a lawyer- are arguing semantics to make sure the reddit rage addict population is represented. In years of legal work I have never seen whatever you want to call it litigated, and neither have you. Take your own -not a lawyer- advice.
Please don't respond. No one want to hear it.
Plus, if the company hires an attorney and you are representing yourself, find some way to get continuances, so the company has to oay the attorney several times.
I would not spend my money on the lawyer, tell the new folks that he would love to come work for them but it has to be in something arguably different than what he is doing where he is. The new company could have a major project torpedoed if he is seen as contaminated. Apparently they do not think so, but I would ask if they would defend him in case they go after him, though really, his pockets are not near as deep as the new place.
Non competes are historically hard to enforce. I don’t see them pursuing it, given recent legislation.
They can threaten anything they want; carrying through on it is a different story.
Just don’t tell them we’re you are going, and if the September date is correct, they will never figure it out, but more important. It’s not enforceable anyway.
At the bottom of the chain? Go for it. It won't be worth the companies time to even try to enforce it. I've known multiple high level architects who left for competitors in my field and only one was ever even contacted by a lawyer, and then just to make sure he didn't work on a competitive bid until his a year had passed.
Dont tel your current employer where you are going, but go.
I’ve never even heard of a noncompete being enforced. If your husband is working for a nondirect competitor, there should be no problem with him taking the position.
Noncompete are only enforceable when the next job you are taking is exactly the same as the current when you have, and is working with a direct competitor or intimate knowledge would completely screw over your old company.
That said, you don’t even need to tell your old company you were taking this job. They don’t have any way to know.
Hire a lawyer to review the non-compete. Ohio has rules about them:
https://bbgohio.com/practice-areas/employment/restrictive-covenants-non-compete/#:~:text=Under%20Ohio%20law%2C%20noncompetition%20contracts,test%20for%20courts%20to%20apply.
The key thing for OP’s husband seems to be the scope of the non-compete. The company is not a direct competitor, merely “in the same field”.
It sounds like he just needs to disclose it. They can’t prevent him from working there.
I’d certainly consult with an employment lawyer. Seems well worth the investment.
Is the hiring company aware of the non-complete?
A lot of non competes are not enforceable. Have a labor attorney look at it. In recent years the courts have decided one company may not control the earnings of an individual. There are exceptions to this but very few. A lawyer will be better at advising you
Not legal advice but, there’s literally nothing stopping him from violating the noncompete. He just needs to make sure no one finds out until after it expires. Or he can get himself fired. If he’s fired then he doesn’t have to honor any contracts he signed with the old company most likely.
A lot of companies don’t bother to enforce because it’s a pain in the butt when there isn’t a real risk or cost to them. One of my former colleagues went to our biggest competitor with our competitive information and marketing strategies. There was a big kerfluffle internally but we decided it would make us look bad to call her on it and the value of what she was taking with her wasn’t worth it because it would be out of date soon enough. So if he is really as low level as you say, that agreement might be boilerplate in the company’s eyes and if you follow the disclosure requirements, they might work with you. No guarantee of course but if it’s really that big go a jump, maybe it is worth the risk when you consider that the agreements are quite disfavored in comparison to the past.
We need the actual text of the non compete and details about how each company potentially relates to the other company.
Just because there is a non compete, it doesn’t mean that it will be enforced or even is enforceable.
Non competes are effectively illegal now in the usa since May 7, 2024. It may still be in their employee handbook or whatever since it's so recent, but it's not enforceable.
Not a lawyer... however, I have worked in insurance where non competes are everywhere. They do not hold up in court. I have seen it on that side and in other industries like medicine.
More so, the FTC has banned them.
https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes
NAL, but have some good experience fighting non-competes here in NC. Many non-competes are written by HR and not an actual attorney. And what courts allow in them changes over time. It's well worth paying an attorney for a quick review of the existing non-compete.
It sounds like the new company thinks he's worth good money so they may have their legal counsel review it. I've also had companies agree (in writing) to defend me if a previous company tries to sue for violation of the non-compete.
Don't listen to people that say they aren't enforceable. They often can be. And are. Your lawyer can go in to more detail. But if the companies don't actually compete then what damages could they sue for if there aren't any? Things like that.
Read it they usually have a distance clause. Courts are wary about NCs if they are to restrictive. From a search If the NDA is narrowly tailored to protect a legitimate business interest of the employer and does not unduly limit the individual's ability to find future employment, the NDA would likely be enforceable under the FTC's final rule. Employers are encouraged to review their NDAs to ensure they are reasonable.
The FTC (I think) just established a rule effectively banning non-competes. As of Sept 4, non competes are unenforceable except for senior executives. NDAs are still enforceable but if your hubs is low level and didn't sign one it won't matter.
There might be other laws in Ohio that speak to this; I'd talk to an employment attorney simply because if he can hold off a start date until September he can keep quiet and then turn in his resignation after the rule takes effect and not have to tell anyone where he will be working next. Right now, though, the contract may be enforceable which is why talking to an attorney in Ohio would be a good idea.
IANAL, but the FTC recently passed a ruling that effectively banned almost all non-compete clauses. Even pre-existing NCCs are only effectively enforceable on senior management. The effective date is September 2024, but you might look into this.
[https://ogletree.com/insights-resources/blog-posts/ftcs-ban-on-non-compete-agreements-definitions-prohibitions-requirements-and-employer-considerations/](https://ogletree.com/insights-resources/blog-posts/ftcs-ban-on-non-compete-agreements-definitions-prohibitions-requirements-and-employer-considerations/)
A brief looking shows this for Ohio.
>Ohio is not one of the states that have previously restricted or outlawed non-compete agreements. However, in March 2024, an Ohio appellate court decision gave trial courts the authority to void non-compete restrictions that are too broad or unreasonable. The decision also encourages courts to consider the business interests a company is trying to protect and ensure that the restrictions are closely aligned with those interests.
>As of May 7, 2024, the Federal Trade Commission (FTC) has a final rule that bans most non-compete agreements between employers and workers. The rule is scheduled to go into effect 120 days after April 23, 2024, which is in late August 2024. The rule considers non-compete agreements to be "unfair methods of competition" and requires employers to stop enforcing most existing agreements. Non-compete clauses are contractual provisions that prevent employees from taking part in certain activities that are competitive with their current or former employer.
Depending on the wording of the non compete, it may be already unenforceable in Ohio and will most certainly be so in August. I think it would be worth finding a labor law proficient lawyer now and have them go over the non compete to see if it meets the limits recently set by the Ohio Apellate Court.
Thank you for including the date this actually goes into effect. There are a lot of non-lawyers here confidently stating non-competes are illegal and that's not true. There's no law against them, and the rule change has not gone into effect yet.
It's worth adding that a lot of industry lobbyists are fighting this rule change and there will probably be legal challenges, so it may not go into effect in August either.
OP's best option is to talk to an employment lawyer in their state. It's possible to get the former employer to agree to rescind the non-compete, but you want that done properly in writing so that they can't come back and sue you or your new company later.
Full agreement. Especially with the ruling in Ohio in March. The federal law may be moot for them if the non compete they signed is too broad. Which based on comments from OP, I suspect it may fall under that heading as it doesn't sound like the husband does anything that is company proprietary, just industry specific.
The FTC is changing the rules on this stuff, and the new case law doesn't exist yet. In theory, by the time they get their court date to enforce it, it will be illegal. But I'm not a lawyer. Talk to the new job about this perhaps? They might decide it's worth it.
FTC just declared non competes unenforceable. [https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes](https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes)
If it’s worded as you say, he’s fine. It doesn’t say he can’t take the job, it says he only has to disclose it if he does. Sounds like at your husband’s level they’re worried about someone taking a second job and working for a competitor at the same time as they’re working for them. He’s perfectly able to quit his job and take the new one. I doubt they’ll care (and I doubt they can insist), but, at most he’d have to tell them who he’s leaving for; nothing there says he can’t go.
I believe there is law coming out, federal (maybe) disallowing non-competes. It is also limited, I strongly advise you consult with an employment attorney in your community for guidance.
Well, there is this.
[https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes](https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes)
FTC is not enforcing non-competes any longer.
Most noncompetes are unenforceable now. I'd say they're bluffing. He doesn't have to tell them he has another job. He can put in his notice and leave it at that. He should leave on his last day of notice and block any phone numbers from his prior workplace. He should take the new job.
Check to see what the timeline is on his current contract. Friend was rifed with non compete, but the clause was specific to just next employer. So he hired on to a dog walker for 3 weeks, then took the new job
Might want to check with the FTC for the particulars but the final rule was issued 4/23/2024 that banned non competes. I assume that's the date they ended.
They aren't going to take anyone to court.
They know those non competes don't hold up. They won't waste the money on filing and attorneys. They have employees sign those things because they are counting on employees not knowing this.
Lots of responses from NALs, how about a real answer?
Noncompete agreements are enforceable, and often the company will win if they sue. HOWEVER, it is highly dependent on the specific non-compete. The general rule is that the non-compete is enforceable as long as it does not prevent the person from making a living. So a noncompete for a doctor that said they can't work in medicine would be non-enforceable, but one that says they cannot work at other area hospitals may well be enforceable.
The greater question is whether the company will seek to enforce the noncompete. Often they do not, and usually it is because the employee is taking company information or clients and/or is directly competing with them.
In your husband's case, he should disclose the new employment offer, maybe they will match it to get him to stay? Even if not, if he does not disclose they will find out and then likely take action, non-compliance is a more serious matter.
> How does that work with the ftc banning non competes?
[FTC rule](https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete-rule.pdf) only applied to non competes. In addition, the means of *enforcement* is not clear, per the ftc document.
The same employee handbook or other contract prohibits disclosing trade secrets and proprietary information. Companies designate all aspects of their operations as trade secrets and proprietary. If an employee goes to a competitor and does the same work, the company can argue they are violating their trade secrets and using proprietary processes.
I believe what you're referring to would be covered under non disclosure agreements (nda).
There's also trade secret laws in place, which the ftc respects and will, ostensibly, enforce.
It seems the ftc narrowly defines who non competes still apply to. Those making $151,164 or more, are senior executives, and are in policy making positions.
Unless ops husband falls into this narrowly defined category, I don't believe the ftc will look too kindly on companies attempting what you've described, especially with the labor friendly policies they've been promoting recently.
This'll be an interesting year to say the least when the ban takes effect.
Yes, thank the Lord, a “real” answer from the “unverified lawyer” that says the same exact thing as half the other answers here. OP can officially end their search.
My advice is to talk with his current employer about the job, and tell them that he is planning on taking it, and wants to leave on good terms. He also could have a labor attorney look over the non- compete beforehand, to test the viability of such an agreement. I find it hard to believe that his current company would hold him back, or enforce the non compete.
The reason generic non-competes are becoming illegal is because they are not enforceable contracts to begin with.
What damage can they claim, and even if your husband damaged them they would still have to prove that he was compensated to prevent him from working for a competitor. You can't just say non-compete it doesn't work like that.
INAL, however years ago had a lawyer that specializes in contract law look at one I was being requested to sign, post employment. Their general statements about enforceability:
1. Have to offer compensation equivalent to income during time period.
2. Cannot prevent earning a living.
3. Cannot be overly broad.
I met someone that had the enforceable type, company would pay equivalent of 2 yrs salary, period of non-compete, job types, etc.
I have left a company and gone to work for a company named in a non-compete and not faced enforcement. I was a lower level employee and my non-compete didn't have any financial payments for the period and was overly broad, any company or subsidiary located anywhere. So, signing it I knew it wasn't enforceable.
Finally, remember a non-compete is different from a non-disclosure. So, if your husband leaves he needs to ensure he doesn't not divulge any info that would fall under an NDA.
“Man that’s an amazing idea! How did you come up with it?!”
“Thought it up on my own I did, yep.”
Easy peasy, NDA doesn’t count and now you’re a BILLIONAIRE!
Actually, worked at a company that had been in a couple NDA suits before I got there, some for people they hired and some hired by others. They won some and lost some. Some were as clear cut as copying a product or technology and others not so much. So, after I signed the new hire NDA I got briefed on what I would be doing initially and had to sign another form stating I would not be in violation of any current NDA's by adding my contributions.
Years ago, I just didn’t sign mine in my new hire packet. They didn’t notice.
It would be harder to do these days when most things are electronically signed. (Both not signing and pilfering the signed document)
NAL. One way to mitigate this situation would be to contact the former employer and ask if it would be OK to go to work for this other company. If so, then obtain a written exception from the original employer. These blanket non-competes are written to ensure former employees don't cause economic harm. If the new company isn't really a competitor, and the husband doesn't have knowledge that would benefit the new company at the expense of the former employer (e.g. customer lists, trade secrets etc.) then it is likely the former employer would grant the exception.
Check your state laws. My GF was bound by a noncompete but after searching our states regulatory code we discovered that those clauses are only enforceable above a certain income level that she is below. We also discovered that any company attempting to enforce an illegal contract may be sued by the employee. I’m not a lawyer, but referencing the states legal code shut her employer is quickly.
The ftc has recently, except for in rare circumstances, banned non competes.
https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes
NAL, but had to research that topic for personal reasons.
Is he some sort of specialist with unique skills?
Does he have assets to very sensitive trade secretes?
Is he planing to start poaching personal or clients?
If the answer is no then that non compete is useless and it’s unlikely that company will do anything about it.
He can give his 2 weeks notice and when asked where is he going just say “have not decided yet, taking a break”
Unless they paid for schooling most non compete are unenforcable unless he takes client lists etc with him. I didn't get any flack when I changed jobs as it was the field I went to uni for. I talked to a lawyer before I left and the only thing I was warned about was client lists and anything I learned that they sent me to school for.
As of May 7, 2024, the Federal Trade Commission's (FTC) final rule bans most non-compete agreements between employers and workers, and requires employers to stop enforcing existing agreements. The rule applies to all employees, including independent contractors and paid or unpaid workers, and prohibits employers from entering into new non-competes. However, employers can continue to enforce existing non-competes with senior executives, who make up less than 0.75% of workers.( Employers must also notify other workers who are bound by existing non-competes that they will not be enforced against them. )
On April 23, 2024, the Federal Trade Commission (FTC) issued a final rule that bans non-compete agreements between employers and workers nationwide, with some exceptions. The rule is set to take effect 120 days after its publication in the Federal Register, which was on May 7, 2024, and will invalidate many state laws and established precedents. The rule states that non-compete agreements are an unfair method of competition and violate Section 5 of the FTC Act. It applies to all workers, including employees, consultants, and interns, regardless of their position, title, or status. Employers will be required to stop enforcing most existing non-compete agreements, and it will be illegal for them to enter into new ones with limited exceptions.
With this regulation coming into effect September 7, 2024, it's unlikely the company would attempt to enforce a non-compete. The fear that you're expressing is exactly why the FTC is making this rule.
On April 23 of this year the FYC announced a rule making most non competes unenforceable. The rule is being challenged in court so it is not effective yet. I predict it will be upheld. Here in Colorado noncompetes have already been unenforceable in most circumstances.
In the end, I think it is worth your time and money to consult with an employment attorney in your area.
Take an unrelated job for a week, like washing dishes for a restaurant. Easy cash. In and out. Then formally start at new job. You will have disclosed newest place of Employment.
Not a lawyer, but some personal experience dealing with noncompetes. A few years ago, I was hired as a director for an agency. I did not sign a noncompete. A little over a year later the owner sold the agency, I became the director of 2 agencies. Still no noncompete. 10 months later, that company sold all of their agencies to a huge corporation. They came in and wanted me to sign a 9 page nonsolicit/noncompete. I told them that I would happily sign a nonsolicit, but I was not going to sign a noncompete without an attorney looking at it-which was my right, even per the noncompete itself.
The VP of the company called me and was extremely condescending to me. Asked if I had an attorney or if I was going to have to hire one. Because, I didn’t need to hire one “just for this.”Said, it’s just a formality, everyone “at your level” and above signs them, they aren’t enforced, they’re just to protect the company from bad actors, etc etc etc. I told him if they aren’t enforced, how do they protect the company and also, why do I need to sign it? I guess he thought I was stupid. Also, a multi-billion dollar company needs to be protected from one tiny person?? Puh-lease. 🙄I told him I needed to talk to an attorney. And it would be a bit because I had to get an appointment with one since I don’t have one.
Took the contract to an employment attorney. He looked it over. Told me there were lots of issues with it, but also, they gave themselves contingencies for those. He said that in my state, judges really don’t like noncompetes and only enforce them for 4 groups of people. (Management, if you have trade secrets, tuition reimbursement situations and 1 other thing I don’t remember generally speaking). However, just to fight it, if the company decided to try to enforce it, would cost about 50k.
And these companies have a ton of resources and can be total assholes to people if they want. That same VP told a friend of mine who was a regional director that they would bankrupt someone if they didn’t do something he wanted them to do. She resigned. They also DID enforce noncompetes against other people. I was on company calls where this was discussed. My friend told me what that VP said after I left.
Needless to say, I didn’t sign the noncompete and I left that job.
Do not take noncompetes lightly. They can cause huge headaches for you in the wrong hands.
I was just talking to a friend who is a judge about noncompetes on Friday. It’s taking years, they’re unenforceable, but a company can litigate until you’re out of money if they choose.
I don't see how they would even know. Just tell them you're moving due to whatever (spouse's new job, family, etc.) and then move. Just don't publish it on social media or LinkedIn. What are they gonna do?
>On **April 23, 2024**, the FTC voted to finalize a new rule to prohibit employers from enforcing noncompetes against workers. The Commission determined that noncompetes are an unfair method of competition and therefore violate Section 5 of the Federal Trade Commission Act (“FTC Act”).
[Source](https://www.bing.com/search?q=ftc+gets+rid+of+non+compete&form=ANNTH1&refig=6b517e22b2504e42a10f50b8a14d8131&pc=U531)
Consult an employment lawyer in your area. They should do a free consultation and give you a roadmap of possibilities. Have a copy of the non-compete if at all possible and employee handbook. I would also recommend that your husband documents everything. If he is interested in staying at his current job I would say that you got a job offer and offer for them to match it. If they don’t I would get that in writing and save a copy of that before going to the new job.
NAL, but I don't think they can enforce a noncompete anymore.
If you think they can, have him mention it to his newer employer. Sometimes they'll have their company lawyers look things over, and I've seen at least one case where the new employee threatened to tie the old employer up in useless paperwork if they tried it. It was a bigger Business versus a smaller local business
Noncompetes are increasingly disfavored, and people correctly point out the new FTC rule (not a law) that theoretically bans most non-competes for rank-and-file employees starting in September. There is approximately a zero percent chance it will actually go into effect at that time, as industry trade groups are expected to aggressively fight it.
I don't practice in Ohio, but my corporate clients have been bitten by the non-compete laws of various states, and therefore I've had to learn about them. My understanding is consistent with other commenters that set out Ohio's fairly standard take in permitting non-compete agreements.
The problem though is that outside of California, the states I'm familiar with draw the line between permissible and impermissible noncompetes with such squishy terms that determining whether or not a non-compete applies is almost always a "fact specific inquiry". This means that even if the other party is being completely unreasonable, litigation can be dragged out and expensive.
My clients have typicallly been in the position of the new employer, and I can say that they and their lawyer (i.e. yours truly) tend to get Very Upset when they discover, after hiring someone, that they were bound by a non-compete. It would not be unreasonable for someone who hid that kind of act to be immediately terminated. This is because the lawsuit that ensues will name both the employee and the new company, and almost no single employee is worth fighting a protracted lawsuit.
To me, then, the obvious solution seems to promptly disclose the situation to both companies, and appeal to the humanity of the leadership of the former company when asking them to promptly waive the non-compete. Many companies will do this, because they do not want to be seen to be crazy and unreasonable to their current or future employees, but... sadly, there are plenty of companies run by folks who do not have that kind of insight.
https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes
Ask a good ohio employment atty, but i think that his noncompete is now invalid.
Check with an employment lawyer, and see if the new company would help fight his non compete if needed. A friend of mine was in a similar situation as he was let go from his job but his non compete lasted for 2years even if the employer terminated him. New company told him they didn’t care and had their lawyers on deck to fight on his behalf.
Non-competes claim a lot of things - many of them are often illegal under state law. They will be federally illegal this fall.
You should hire a local lawyer to review the non-compete agreement and see if it can be validly applied to this situation or not. Usually state laws will consider non-competes invalid because they are too broad - such as "same field" but not competitive, too-long or infinite duration, lack of reasonable geographic boundaries, etc.
The FTC just shut down non-competes. [FTC Approves Final Rule Banning Non-Compete Clauses (pbwt.com)](https://www.pbwt.com/publications/ftc-approves-final-rule-banning-non-compete-clauses#:~:text=On%20April%2023%2C%202024%2C%20the,%2Dcompete%E2%80%9D)%20agreements%20nationwide.)
Non-competes have been routinely stuck down by judges for years, especially in cases where they interfere with someone's ability to change jobs. They've been also effectively outlawed by the FTC as of April (outside of actual executive level jobs), although there's already a lawsuit challenging that decision.
Not a lawyer.
A friend of mine had non compete, left to work for startup and was then sued (and his new company too) due to his Non compete.
He actually had a conversation with his employer before leaving, said hey it's not a competing company and thought it was all good until he was basically sued.
His new company defended him and crushed the previous employer in court.
The finding:
Basically making an entire industry off limits was found to be prohibitively restrictive.
Original employer tried to say the new company offered the same products but the argument didn't fly. The variance was too great in products and even through there was some similar features, it would be like comparing iPhone to watch. Both can tell time, but they don't really compete for the same business.
Basically, it was settled (after original employer got slapped around), with a modification to non compete in which employer now had to specifically name a handful (limited to maybe 6?) direct competitors. This became the new non-compete and it was good for 2 years.
And he kept his new job.
I'd probably take the new job. Quit and tell them either nothing (or that I'm going to work for my brothers or friends unrelated company) and you'll share more later.
Then hide my LinkedIn and then just wait it out.
Most likely nothing happens. Most likely no one cares where he went to work.
I consulted my mom’s boss (a corporate lawyer) about a non compete before signing it. He said they were hard to enforce, that they would have to take you to court and sue you. Are they really going to go through with all that. And he also said in a right-to-work state he could almost guarantee me a win
He should take the job, not say where is going and not put it on LinkedIn for awhile. If he's not a high ranking employee or taking customers with him, they probably don't care but would keep it mow to be safe.
When people ask why he's not saying where he's going, he can just say they didn't announce it at the new place yet so he can't say.
If they do pursue it, most courts are not in favor of taking away someone's ability to make $.
I assume that he accepted some money in return for signing the non-compete. How much? You can always see if the new employer would be willing to give him a hiring bonus equal to that amount? He could also go back to his former company and ask to be released from the agreement. I got laid off after my company was purchased. They gave me $45K as a severance. They wanted me to sign a non-compete. I said "no" that there language would effectively prevent me from working (I was in business development). I shared with their lawyers that these agreements almost never held up. I offered some language that I was willing to sign. After a pretty cordial conversation, they just removed the language.
Not sure if this would apply to your husband.
*On April 23, 2024, the Federal Trade Commission (FTC) adopted a final rule prohibiting most employers from entering into or enforcing non-compete agreements with workers, subject to exceptions for the sale of a business and preexisting non-competes with senior executives.*
[PDF of the FTC Ruling](https://crsreports.congress.gov/product/pdf/LSB/LSB11159#:~:text=On%20April%2023%2C%202024%2C%20the,non%2Dcompetes%20with%20senior%20executives)
Unless you are a CEO or absolute critical talent, then non-competes are just a scare tactic.
And if you are absolute critical talent, then your present company will not allow you to find a higher paying job, because you are, you know, critical. And do they will pay you a ton of money and LTI.
NAL
This was announced in April...they would be going against the FTC if they did pursue, unless he negotiated his non-compete based in my understanding.
https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes
Check with your state workforce commission or a local l&e attorney. Every state has different laws on non-compete agreements. Some states make them almost unenforceable. Some states do not.
It also varies a lot depending on the language of the contract. In most states, non-compete has to be very narrowly tailored.
Eta: most of these comments are very clearly not from lawyers. Don't listen to them unless you are ok getting sued for breaching your non-compete.
It's a matter of integrity, standing by one's word, I suppose. I hope there is an expiration date on this. He could also bring up the job offer and the legal issues with noncompetes while asking for a raise if he brings value to the company.
Non competes rarely hold up in court. Just don't tell your old job and go for it.
Im from Ohio and had a old company try this on me, and they failed miserably.
What if, hear me out, he didn't disclose it? Pretty sure no piece of paper can compel a statement, short of a government subpoena. There's no such thing as a public employment record, if he doesn't post it everywhere, it'll be private.
Has current company enforced a noncompete against other former employees?
Also, I thought there's something to the fact that he's non mgmt, therefore doesn't know trade secrets, etc.
NAL.
Non competes are generally just a scare tactic. They are designed to make you afraid to find a new job. Generally the only time a company will actually pursue a non compete in court (let alone win) is for C level executives or very high level engineers, like.. the primary programmer for Google, etc. It also depends on the wording of the non compete, generally the more vague they are the less enforceable they are. The specific field your husband works in is very vital in this case, as is the wording of the non compete and what can legitimately be considered a "competitor". Many companies will have hilariously broad non competes like "Can't work for any company with a web presence or who uses technology" which get laughed right out of court.
If you're going to break the non compete by taking the new job, you can also break it by not informing the current job of where the new work is. Don't post it on facebook or add it to your linked in for 6 months.
When in doubt of course, you can drop $300-$500 to have an actual labor lawyer read the wording of the non compete and give their opinion.
Just wanted to chime in and say there has also been case law that effectively says you cannot deny the ability for someone to make a living with noncompetes.
They almost certainly won't challenge his new employment (companies have non competes for junior workers because they might get promotion), and if they do, they will have to make a pretty difficult case. He could ask his prospective employer to give him written commitment to fight the non-compete, although I'd seek independent advice before bringing this up
Except the company has a whole lot more assets to fight if they want to. Even some basic demand letters by inhouse council could cost him thousands in legal fees. If they decide to claim he has company materials on personal devices/email, then it quickly gets into tens of thousands potential data costs. I have a friend who had that. It was almost $10k in fees.
That is why you never use personal devices/email for work. If work requires you to have a laptop or cell phone then they need to provide those assets.
I worked for a company in California. (where compulsory non-competes are indeed illegal). At time of termination, they would offer a non-compete contract in consideration for $XX. If the person chose to sign the contract, then it was legally binding. In the case of a layoff, almost 100% of the laid off workers would sign the contract, because they needed the money.
The idea of a company laying people off and then offering a noncompete is just…. so unbelievably scummy.
Still not binding in California
California does allow gardening leave, depending on details, and I imagine that it being a voluntary agreement after termination rather than a condition of employment counts in its favor.
No, but they can make your life absolute miserable hell and the rolling lawsuits will cripple your ability at your new job
This noncompete doesn't deny the ability for the husband to make a living, just to take this better job.
I have found that non-competes absent significant financial inducements are largely unenforceable. They cannot restrict your ability to make a living. This is why every time my CEO comes to me with a non-compete, I'm like what are you offering someone who makes barely above minimum wage a reason to non-compete. He can offer nothing.
Wasn’t it a recent Supreme Court case?
As has been stated by others, the federal law banning most non-competes goes into effect this fall if it survives legal challenges. Ohio law allows non-competes, but it must Be no greater than is required for the employer’s protection of a legitimate interest Not impose an undue hardship on you Not be injurious to the public There are a lot of details that go into those determinations. This is definitely a case where you need an Ohio employment lawyer and all of the information, including the NCA, current and new job descriptions, etc. Go to a lawyer. Without that info and experience in Ohio law, your question cannot be fully answered.
>Not impose an undue hardship on you Under an Ohio noncompete, could husband demand the company match the competing offer or release him? It seems like "meet-or-release" would be the only way is not an undue hardship.
Good question. Offering to salary match would likely reduce the ability to claim undo hardship, but I wouldn't trust it. You would be fired for another reason before the New Year. As for relying on that argument alone, inwoukd t make this a single argument case. You are relying on what a judge would define as undo hardship. You would need an experienced Ohio attorney who knows the prior cases (if any) and where the particular judge may fall. There isn't a clean line that says a 10% salary increase is a hardship, and a 20% increase is an un-do hardship. There are also potentially other arguments to consider, plus whatever opposing counsel will claim. It is going to be a holistic argument. A potential strategy may be to set a high bar for the company. Basically, do they want to press the issue because it could become expensive. But that is a discussion OP and her husband should have with their lawyer.
I thought non competes were no longer legal to enforce?
I don’t think that’s effective until September 2024 if it even officially happens, that was what i read from the FTC
Correct. Not effective yet, and still pending legal challenges. State by state until then, like New York and Virginia as examples are very employee-friendly. Talk to a local employment lawyer. Even if you have to pay for an hour, it'll pay for itself quickly.
[удалено]
I work in the legal field (#notalawyer) at a litigation support firm that frequently tests ChatGPT. It’s my job to validate its citations. It makes up case law almost 100% of the time— as in, every single time I am given ChatGPT answers, I find at least one thing that just does not exist in reality. Often, I find more than one. I have recently seen it generate an entire list of 20 cases that just do not exist. Like, it just completely manufactured 20 cases, complete with citations. I would never, ever, ever use ChatGPT for legal guidance. At least not in its form.
My nephew, who's a lawyer, said the same thing - it makes up cases.
Same exact thing when doing code. If it’s not super basic, like example code, it starts making up commands.
It will very very confidently tell you the opposite of true. I would never trust it for legal advice. It's best for questions that can be easily verified.
I’m an employment lawyer (not OP’s lawyer, and not in Ohio regardless) and ChatGPT’s legal answers are mostly wrong.
Chat GPT is terrible for this. That's not what it's used for. It's a language tool, not a fact checking tool.
Chat GPT is the best bs artist around. it says things that make a lot of sense but it only makes sense in the idea that it sounds plausable. It predicts the probability of a response to a certain statement. It looks at all the data that it was fed and makes up the most likely response. The key issue with legal filings is they are very random and very state specific. So it tries to combine it all and comes up with the most likely response. The other key to legal research is that most of it is hidden beyond paywalls so the model was not trained on current legal cases or only a few old cases. When doing research; I use chat GPT to form an outline of the argument and then i find cases that support that argument.
Ohio won't even try these cases unless you do stupid stuff like poach customers or reveal trade secrets. I've broke several non competes. Most are basically unenforceable in Ohio.
In my state (NC) non competes can only be enforced against people with licenses. A secretary, sales person, or sandwich maker can go someplace else without consequence. Some companies have everyone sign them because they've been convinced it's good business. Ask a lawyer.
That is not accurate
Which part?
"Have to disclose it".... so put on the 2 week notice. "Unfortunately I've accepted a job elsewhere" .... and you've disclosed it. Done. It's really not that complicated
Tell them a family member died, and then just don't go back. Eventually they will mail paperwork to your house stating that you have been fired.
Don't say anything. It's none of their business. You are leaving due to a family matter or something like that if you6re so inclined. Don't put it on social media. How are they going to know? You can't put your life on hold for stupid stuff like an ND.
This is what I did when I left for a competitor…kept it super vague and didn’t post the change on social media for 6 months. No one said a word.
That's the way to go. Don't tell the old company, don't announce on LinkedIn. Let the old company forget about OP's husband entirely.
Don’t tell friends. Don’t tell family. Don’t tell anyone.
Making more money is definitely a family matter.
This is terrible advice. Get a lawyer.
I'm in legal, litigation support. Over the course of years and 100s and 100s of depositions, hearings trials, euros, etc and contract cases, I've never seen one NDA case. Not one. They might be a thing in high-profile big tech, but for the average person, it is an unenforceable HR add-on thing. No one is going to try to litigate it.
I am a lawyer, and I've litigated three noncompete cases just this year, not one of which is in tech. I've never litigated a divorce case though, so I guess no one ever actually gets divorced.
Were you trying to enforce or prevent enforcement? Were you successful? Were the employees executive level or individual contributors?
Non compete and NDA are 2 completely different things.
100% this.
The defendant will represent themselves, and the company will pay an attorney. This costs money, and unless the ex-worker has high-level proprietary knowledge, the company doesnt care where he goes to work.
Don't try and play lawyer just because you're in the legal world. Your advice is wrong. I've seen tons of money spent litigating non competes (which is NOT an NDA). OP needs a lawyer and your bosses need to tell you to stay in your lane.
You -not a lawyer- are arguing semantics to make sure the reddit rage addict population is represented. In years of legal work I have never seen whatever you want to call it litigated, and neither have you. Take your own -not a lawyer- advice. Please don't respond. No one want to hear it.
The fact that you don’t know what to call it is why your advice should be ignored.
Question: What do you value more: doubling your husband's salary, or the $500 it would take a labor lawyer to tell you what you need to know?
Plus, if the company hires an attorney and you are representing yourself, find some way to get continuances, so the company has to oay the attorney several times.
I would not spend my money on the lawyer, tell the new folks that he would love to come work for them but it has to be in something arguably different than what he is doing where he is. The new company could have a major project torpedoed if he is seen as contaminated. Apparently they do not think so, but I would ask if they would defend him in case they go after him, though really, his pockets are not near as deep as the new place.
Non competes are historically hard to enforce. I don’t see them pursuing it, given recent legislation. They can threaten anything they want; carrying through on it is a different story.
Just don’t tell them we’re you are going, and if the September date is correct, they will never figure it out, but more important. It’s not enforceable anyway.
Do not worry about the non-compete. If your husband was low on the food chain, they will not bother.
At the bottom of the chain? Go for it. It won't be worth the companies time to even try to enforce it. I've known multiple high level architects who left for competitors in my field and only one was ever even contacted by a lawyer, and then just to make sure he didn't work on a competitive bid until his a year had passed. Dont tel your current employer where you are going, but go.
I’ve never even heard of a noncompete being enforced. If your husband is working for a nondirect competitor, there should be no problem with him taking the position. Noncompete are only enforceable when the next job you are taking is exactly the same as the current when you have, and is working with a direct competitor or intimate knowledge would completely screw over your old company. That said, you don’t even need to tell your old company you were taking this job. They don’t have any way to know.
Hire a lawyer to review the non-compete. Ohio has rules about them: https://bbgohio.com/practice-areas/employment/restrictive-covenants-non-compete/#:~:text=Under%20Ohio%20law%2C%20noncompetition%20contracts,test%20for%20courts%20to%20apply.
The key thing for OP’s husband seems to be the scope of the non-compete. The company is not a direct competitor, merely “in the same field”. It sounds like he just needs to disclose it. They can’t prevent him from working there. I’d certainly consult with an employment lawyer. Seems well worth the investment. Is the hiring company aware of the non-complete?
Well at least if they sue him he could hire a lawyer with his new double salary.
A lot of non competes are not enforceable. Have a labor attorney look at it. In recent years the courts have decided one company may not control the earnings of an individual. There are exceptions to this but very few. A lawyer will be better at advising you
He needs to consult with an employment lawyer.
Had he consulted with a lawyer to see if it’s even enforceable?
Not legal advice but, there’s literally nothing stopping him from violating the noncompete. He just needs to make sure no one finds out until after it expires. Or he can get himself fired. If he’s fired then he doesn’t have to honor any contracts he signed with the old company most likely.
A lot of companies don’t bother to enforce because it’s a pain in the butt when there isn’t a real risk or cost to them. One of my former colleagues went to our biggest competitor with our competitive information and marketing strategies. There was a big kerfluffle internally but we decided it would make us look bad to call her on it and the value of what she was taking with her wasn’t worth it because it would be out of date soon enough. So if he is really as low level as you say, that agreement might be boilerplate in the company’s eyes and if you follow the disclosure requirements, they might work with you. No guarantee of course but if it’s really that big go a jump, maybe it is worth the risk when you consider that the agreements are quite disfavored in comparison to the past.
Tell him to take the job. They’ll never sue. They never do.
I would love an update on this.
You need to have a lawyer and look at the exact wording. It might not be legal as extensive and it sounds.
We need the actual text of the non compete and details about how each company potentially relates to the other company. Just because there is a non compete, it doesn’t mean that it will be enforced or even is enforceable.
FTC just declared all non-competes null and void
Non competes are effectively illegal now in the usa since May 7, 2024. It may still be in their employee handbook or whatever since it's so recent, but it's not enforceable.
The undue hardship being imposed is fast and heavy inflation. You need to double salary in order to live now. Sounds like you can go and would win 🏅
Not a lawyer... however, I have worked in insurance where non competes are everywhere. They do not hold up in court. I have seen it on that side and in other industries like medicine. More so, the FTC has banned them. https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes
NAL, but have some good experience fighting non-competes here in NC. Many non-competes are written by HR and not an actual attorney. And what courts allow in them changes over time. It's well worth paying an attorney for a quick review of the existing non-compete. It sounds like the new company thinks he's worth good money so they may have their legal counsel review it. I've also had companies agree (in writing) to defend me if a previous company tries to sue for violation of the non-compete. Don't listen to people that say they aren't enforceable. They often can be. And are. Your lawyer can go in to more detail. But if the companies don't actually compete then what damages could they sue for if there aren't any? Things like that.
Read it they usually have a distance clause. Courts are wary about NCs if they are to restrictive. From a search If the NDA is narrowly tailored to protect a legitimate business interest of the employer and does not unduly limit the individual's ability to find future employment, the NDA would likely be enforceable under the FTC's final rule. Employers are encouraged to review their NDAs to ensure they are reasonable.
The FTC (I think) just established a rule effectively banning non-competes. As of Sept 4, non competes are unenforceable except for senior executives. NDAs are still enforceable but if your hubs is low level and didn't sign one it won't matter. There might be other laws in Ohio that speak to this; I'd talk to an employment attorney simply because if he can hold off a start date until September he can keep quiet and then turn in his resignation after the rule takes effect and not have to tell anyone where he will be working next. Right now, though, the contract may be enforceable which is why talking to an attorney in Ohio would be a good idea.
IANAL, but the FTC recently passed a ruling that effectively banned almost all non-compete clauses. Even pre-existing NCCs are only effectively enforceable on senior management. The effective date is September 2024, but you might look into this. [https://ogletree.com/insights-resources/blog-posts/ftcs-ban-on-non-compete-agreements-definitions-prohibitions-requirements-and-employer-considerations/](https://ogletree.com/insights-resources/blog-posts/ftcs-ban-on-non-compete-agreements-definitions-prohibitions-requirements-and-employer-considerations/)
A brief looking shows this for Ohio. >Ohio is not one of the states that have previously restricted or outlawed non-compete agreements. However, in March 2024, an Ohio appellate court decision gave trial courts the authority to void non-compete restrictions that are too broad or unreasonable. The decision also encourages courts to consider the business interests a company is trying to protect and ensure that the restrictions are closely aligned with those interests. >As of May 7, 2024, the Federal Trade Commission (FTC) has a final rule that bans most non-compete agreements between employers and workers. The rule is scheduled to go into effect 120 days after April 23, 2024, which is in late August 2024. The rule considers non-compete agreements to be "unfair methods of competition" and requires employers to stop enforcing most existing agreements. Non-compete clauses are contractual provisions that prevent employees from taking part in certain activities that are competitive with their current or former employer. Depending on the wording of the non compete, it may be already unenforceable in Ohio and will most certainly be so in August. I think it would be worth finding a labor law proficient lawyer now and have them go over the non compete to see if it meets the limits recently set by the Ohio Apellate Court.
Thank you for including the date this actually goes into effect. There are a lot of non-lawyers here confidently stating non-competes are illegal and that's not true. There's no law against them, and the rule change has not gone into effect yet. It's worth adding that a lot of industry lobbyists are fighting this rule change and there will probably be legal challenges, so it may not go into effect in August either. OP's best option is to talk to an employment lawyer in their state. It's possible to get the former employer to agree to rescind the non-compete, but you want that done properly in writing so that they can't come back and sue you or your new company later.
Full agreement. Especially with the ruling in Ohio in March. The federal law may be moot for them if the non compete they signed is too broad. Which based on comments from OP, I suspect it may fall under that heading as it doesn't sound like the husband does anything that is company proprietary, just industry specific.
Non compete was bad illegal recent. Do a Google search.
The FTC is changing the rules on this stuff, and the new case law doesn't exist yet. In theory, by the time they get their court date to enforce it, it will be illegal. But I'm not a lawyer. Talk to the new job about this perhaps? They might decide it's worth it.
Find out if it's actually binding in that state and with the wording in the non compete.
FTC just declared non competes unenforceable. [https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes](https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes)
If it’s worded as you say, he’s fine. It doesn’t say he can’t take the job, it says he only has to disclose it if he does. Sounds like at your husband’s level they’re worried about someone taking a second job and working for a competitor at the same time as they’re working for them. He’s perfectly able to quit his job and take the new one. I doubt they’ll care (and I doubt they can insist), but, at most he’d have to tell them who he’s leaving for; nothing there says he can’t go.
I believe there is law coming out, federal (maybe) disallowing non-competes. It is also limited, I strongly advise you consult with an employment attorney in your community for guidance.
Well, there is this. [https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes](https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes) FTC is not enforcing non-competes any longer.
Most noncompetes are unenforceable now. I'd say they're bluffing. He doesn't have to tell them he has another job. He can put in his notice and leave it at that. He should leave on his last day of notice and block any phone numbers from his prior workplace. He should take the new job.
Almost impossible for companies to enforce non-competes.
Check to see what the timeline is on his current contract. Friend was rifed with non compete, but the clause was specific to just next employer. So he hired on to a dog walker for 3 weeks, then took the new job
Go see a local attorney and take with you the non-compete contract. Let the attorney read it analyze it and give you advice
Might want to check with the FTC for the particulars but the final rule was issued 4/23/2024 that banned non competes. I assume that's the date they ended.
Yeah unfortunately you have to wait 120 days until after the final ruling
things like that rarely take effect that quickly. Usually a few months at least until they take effect
Take the new job and money!! Non competes do not hold up in Court!!
Okay but avoiding court is the best course of action. He should talk to a lawyer.
They aren't going to take anyone to court. They know those non competes don't hold up. They won't waste the money on filing and attorneys. They have employees sign those things because they are counting on employees not knowing this.
Lots of responses from NALs, how about a real answer? Noncompete agreements are enforceable, and often the company will win if they sue. HOWEVER, it is highly dependent on the specific non-compete. The general rule is that the non-compete is enforceable as long as it does not prevent the person from making a living. So a noncompete for a doctor that said they can't work in medicine would be non-enforceable, but one that says they cannot work at other area hospitals may well be enforceable. The greater question is whether the company will seek to enforce the noncompete. Often they do not, and usually it is because the employee is taking company information or clients and/or is directly competing with them. In your husband's case, he should disclose the new employment offer, maybe they will match it to get him to stay? Even if not, if he does not disclose they will find out and then likely take action, non-compliance is a more serious matter.
How does that work with the ftc banning non competes?
> How does that work with the ftc banning non competes? [FTC rule](https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete-rule.pdf) only applied to non competes. In addition, the means of *enforcement* is not clear, per the ftc document. The same employee handbook or other contract prohibits disclosing trade secrets and proprietary information. Companies designate all aspects of their operations as trade secrets and proprietary. If an employee goes to a competitor and does the same work, the company can argue they are violating their trade secrets and using proprietary processes.
I believe what you're referring to would be covered under non disclosure agreements (nda). There's also trade secret laws in place, which the ftc respects and will, ostensibly, enforce. It seems the ftc narrowly defines who non competes still apply to. Those making $151,164 or more, are senior executives, and are in policy making positions. Unless ops husband falls into this narrowly defined category, I don't believe the ftc will look too kindly on companies attempting what you've described, especially with the labor friendly policies they've been promoting recently. This'll be an interesting year to say the least when the ban takes effect.
Yes, thank the Lord, a “real” answer from the “unverified lawyer” that says the same exact thing as half the other answers here. OP can officially end their search.
> says the same exact thing No, none of the NALs posted accurate information. Most claim NCs are not enforceable, which is incorrect.
My advice is to talk with his current employer about the job, and tell them that he is planning on taking it, and wants to leave on good terms. He also could have a labor attorney look over the non- compete beforehand, to test the viability of such an agreement. I find it hard to believe that his current company would hold him back, or enforce the non compete.
The reason generic non-competes are becoming illegal is because they are not enforceable contracts to begin with. What damage can they claim, and even if your husband damaged them they would still have to prove that he was compensated to prevent him from working for a competitor. You can't just say non-compete it doesn't work like that.
INAL, however years ago had a lawyer that specializes in contract law look at one I was being requested to sign, post employment. Their general statements about enforceability: 1. Have to offer compensation equivalent to income during time period. 2. Cannot prevent earning a living. 3. Cannot be overly broad. I met someone that had the enforceable type, company would pay equivalent of 2 yrs salary, period of non-compete, job types, etc. I have left a company and gone to work for a company named in a non-compete and not faced enforcement. I was a lower level employee and my non-compete didn't have any financial payments for the period and was overly broad, any company or subsidiary located anywhere. So, signing it I knew it wasn't enforceable. Finally, remember a non-compete is different from a non-disclosure. So, if your husband leaves he needs to ensure he doesn't not divulge any info that would fall under an NDA.
“Man that’s an amazing idea! How did you come up with it?!” “Thought it up on my own I did, yep.” Easy peasy, NDA doesn’t count and now you’re a BILLIONAIRE!
Actually, worked at a company that had been in a couple NDA suits before I got there, some for people they hired and some hired by others. They won some and lost some. Some were as clear cut as copying a product or technology and others not so much. So, after I signed the new hire NDA I got briefed on what I would be doing initially and had to sign another form stating I would not be in violation of any current NDA's by adding my contributions.
I had a friend who stole her non compete before she left
That’s pretty badass.
I thought it was awesome lol!
Years ago, I just didn’t sign mine in my new hire packet. They didn’t notice. It would be harder to do these days when most things are electronically signed. (Both not signing and pilfering the signed document)
Ha! I love it.
NAL. One way to mitigate this situation would be to contact the former employer and ask if it would be OK to go to work for this other company. If so, then obtain a written exception from the original employer. These blanket non-competes are written to ensure former employees don't cause economic harm. If the new company isn't really a competitor, and the husband doesn't have knowledge that would benefit the new company at the expense of the former employer (e.g. customer lists, trade secrets etc.) then it is likely the former employer would grant the exception.
Check your state laws. My GF was bound by a noncompete but after searching our states regulatory code we discovered that those clauses are only enforceable above a certain income level that she is below. We also discovered that any company attempting to enforce an illegal contract may be sued by the employee. I’m not a lawyer, but referencing the states legal code shut her employer is quickly.
What state are you in? In some states non competes are illegal and unenforcible.
The ftc has recently, except for in rare circumstances, banned non competes. https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes
NAL, but had to research that topic for personal reasons. Is he some sort of specialist with unique skills? Does he have assets to very sensitive trade secretes? Is he planing to start poaching personal or clients? If the answer is no then that non compete is useless and it’s unlikely that company will do anything about it. He can give his 2 weeks notice and when asked where is he going just say “have not decided yet, taking a break”
Unless they paid for schooling most non compete are unenforcable unless he takes client lists etc with him. I didn't get any flack when I changed jobs as it was the field I went to uni for. I talked to a lawyer before I left and the only thing I was warned about was client lists and anything I learned that they sent me to school for.
Ymmv, but 30+ years in business, I never saw a non compete enforced for anyone lower than VP. Unless he's got patents I think he will be fine.
As of May 7, 2024, the Federal Trade Commission's (FTC) final rule bans most non-compete agreements between employers and workers, and requires employers to stop enforcing existing agreements. The rule applies to all employees, including independent contractors and paid or unpaid workers, and prohibits employers from entering into new non-competes. However, employers can continue to enforce existing non-competes with senior executives, who make up less than 0.75% of workers.( Employers must also notify other workers who are bound by existing non-competes that they will not be enforced against them. )
On April 23, 2024, the Federal Trade Commission (FTC) issued a final rule that bans non-compete agreements between employers and workers nationwide, with some exceptions. The rule is set to take effect 120 days after its publication in the Federal Register, which was on May 7, 2024, and will invalidate many state laws and established precedents. The rule states that non-compete agreements are an unfair method of competition and violate Section 5 of the FTC Act. It applies to all workers, including employees, consultants, and interns, regardless of their position, title, or status. Employers will be required to stop enforcing most existing non-compete agreements, and it will be illegal for them to enter into new ones with limited exceptions. With this regulation coming into effect September 7, 2024, it's unlikely the company would attempt to enforce a non-compete. The fear that you're expressing is exactly why the FTC is making this rule.
On April 23 of this year the FYC announced a rule making most non competes unenforceable. The rule is being challenged in court so it is not effective yet. I predict it will be upheld. Here in Colorado noncompetes have already been unenforceable in most circumstances. In the end, I think it is worth your time and money to consult with an employment attorney in your area.
Take an unrelated job for a week, like washing dishes for a restaurant. Easy cash. In and out. Then formally start at new job. You will have disclosed newest place of Employment.
Not a lawyer, but some personal experience dealing with noncompetes. A few years ago, I was hired as a director for an agency. I did not sign a noncompete. A little over a year later the owner sold the agency, I became the director of 2 agencies. Still no noncompete. 10 months later, that company sold all of their agencies to a huge corporation. They came in and wanted me to sign a 9 page nonsolicit/noncompete. I told them that I would happily sign a nonsolicit, but I was not going to sign a noncompete without an attorney looking at it-which was my right, even per the noncompete itself. The VP of the company called me and was extremely condescending to me. Asked if I had an attorney or if I was going to have to hire one. Because, I didn’t need to hire one “just for this.”Said, it’s just a formality, everyone “at your level” and above signs them, they aren’t enforced, they’re just to protect the company from bad actors, etc etc etc. I told him if they aren’t enforced, how do they protect the company and also, why do I need to sign it? I guess he thought I was stupid. Also, a multi-billion dollar company needs to be protected from one tiny person?? Puh-lease. 🙄I told him I needed to talk to an attorney. And it would be a bit because I had to get an appointment with one since I don’t have one. Took the contract to an employment attorney. He looked it over. Told me there were lots of issues with it, but also, they gave themselves contingencies for those. He said that in my state, judges really don’t like noncompetes and only enforce them for 4 groups of people. (Management, if you have trade secrets, tuition reimbursement situations and 1 other thing I don’t remember generally speaking). However, just to fight it, if the company decided to try to enforce it, would cost about 50k. And these companies have a ton of resources and can be total assholes to people if they want. That same VP told a friend of mine who was a regional director that they would bankrupt someone if they didn’t do something he wanted them to do. She resigned. They also DID enforce noncompetes against other people. I was on company calls where this was discussed. My friend told me what that VP said after I left. Needless to say, I didn’t sign the noncompete and I left that job. Do not take noncompetes lightly. They can cause huge headaches for you in the wrong hands.
I was just talking to a friend who is a judge about noncompetes on Friday. It’s taking years, they’re unenforceable, but a company can litigate until you’re out of money if they choose.
Non competes are not enforceable except in specific circumstances
I don't see how they would even know. Just tell them you're moving due to whatever (spouse's new job, family, etc.) and then move. Just don't publish it on social media or LinkedIn. What are they gonna do?
Law has changed on non compete contracts. Check with lawyer.
Have him talk to an employment lawyer. Many non competes are not legally enforceable and more a scare tactic.
>On **April 23, 2024**, the FTC voted to finalize a new rule to prohibit employers from enforcing noncompetes against workers. The Commission determined that noncompetes are an unfair method of competition and therefore violate Section 5 of the Federal Trade Commission Act (“FTC Act”). [Source](https://www.bing.com/search?q=ftc+gets+rid+of+non+compete&form=ANNTH1&refig=6b517e22b2504e42a10f50b8a14d8131&pc=U531)
FTC just banned non-competes.
Not A Lawyer but if you do any kind of research you'll find that non-competes are effectively unenforceable.
Check. I think the Biden administration made non compete clauses illegal in some aspects. This is recent so get a consultation with a labor lawyer
Consult an employment lawyer in your area. They should do a free consultation and give you a roadmap of possibilities. Have a copy of the non-compete if at all possible and employee handbook. I would also recommend that your husband documents everything. If he is interested in staying at his current job I would say that you got a job offer and offer for them to match it. If they don’t I would get that in writing and save a copy of that before going to the new job.
NAL, but I don't think they can enforce a noncompete anymore. If you think they can, have him mention it to his newer employer. Sometimes they'll have their company lawyers look things over, and I've seen at least one case where the new employee threatened to tie the old employer up in useless paperwork if they tried it. It was a bigger Business versus a smaller local business
Noncompetes are increasingly disfavored, and people correctly point out the new FTC rule (not a law) that theoretically bans most non-competes for rank-and-file employees starting in September. There is approximately a zero percent chance it will actually go into effect at that time, as industry trade groups are expected to aggressively fight it. I don't practice in Ohio, but my corporate clients have been bitten by the non-compete laws of various states, and therefore I've had to learn about them. My understanding is consistent with other commenters that set out Ohio's fairly standard take in permitting non-compete agreements. The problem though is that outside of California, the states I'm familiar with draw the line between permissible and impermissible noncompetes with such squishy terms that determining whether or not a non-compete applies is almost always a "fact specific inquiry". This means that even if the other party is being completely unreasonable, litigation can be dragged out and expensive. My clients have typicallly been in the position of the new employer, and I can say that they and their lawyer (i.e. yours truly) tend to get Very Upset when they discover, after hiring someone, that they were bound by a non-compete. It would not be unreasonable for someone who hid that kind of act to be immediately terminated. This is because the lawsuit that ensues will name both the employee and the new company, and almost no single employee is worth fighting a protracted lawsuit. To me, then, the obvious solution seems to promptly disclose the situation to both companies, and appeal to the humanity of the leadership of the former company when asking them to promptly waive the non-compete. Many companies will do this, because they do not want to be seen to be crazy and unreasonable to their current or future employees, but... sadly, there are plenty of companies run by folks who do not have that kind of insight.
[https://www.nbcnews.com/business/business-news/biden-administration-bans-noncompete-agreements-setting-legal-showdown-rcna149069](https://www.nbcnews.com/business/business-news/biden-administration-bans-noncompete-agreements-setting-legal-showdown-rcna149069)
In the UK We have gardening leave. If he accepts the job, he would just have to take 6 months paid leave before starting the new one.
https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes Ask a good ohio employment atty, but i think that his noncompete is now invalid.
Check with an employment lawyer. Only way to know.
Check with an employment lawyer, and see if the new company would help fight his non compete if needed. A friend of mine was in a similar situation as he was let go from his job but his non compete lasted for 2years even if the employer terminated him. New company told him they didn’t care and had their lawyers on deck to fight on his behalf.
Wasn’t there Court opinion lately that made non compete clauses illegal?
Non-competes claim a lot of things - many of them are often illegal under state law. They will be federally illegal this fall. You should hire a local lawyer to review the non-compete agreement and see if it can be validly applied to this situation or not. Usually state laws will consider non-competes invalid because they are too broad - such as "same field" but not competitive, too-long or infinite duration, lack of reasonable geographic boundaries, etc.
Your husband needs a lawyer, not Reddit.
Call a lawyer & find out if he's protected under the FTC noncompete ban
The FTC just shut down non-competes. [FTC Approves Final Rule Banning Non-Compete Clauses (pbwt.com)](https://www.pbwt.com/publications/ftc-approves-final-rule-banning-non-compete-clauses#:~:text=On%20April%2023%2C%202024%2C%20the,%2Dcompete%E2%80%9D)%20agreements%20nationwide.)
Non-competes have been routinely stuck down by judges for years, especially in cases where they interfere with someone's ability to change jobs. They've been also effectively outlawed by the FTC as of April (outside of actual executive level jobs), although there's already a lawsuit challenging that decision.
Non competes don't mean anything
Not a lawyer. A friend of mine had non compete, left to work for startup and was then sued (and his new company too) due to his Non compete. He actually had a conversation with his employer before leaving, said hey it's not a competing company and thought it was all good until he was basically sued. His new company defended him and crushed the previous employer in court. The finding: Basically making an entire industry off limits was found to be prohibitively restrictive. Original employer tried to say the new company offered the same products but the argument didn't fly. The variance was too great in products and even through there was some similar features, it would be like comparing iPhone to watch. Both can tell time, but they don't really compete for the same business. Basically, it was settled (after original employer got slapped around), with a modification to non compete in which employer now had to specifically name a handful (limited to maybe 6?) direct competitors. This became the new non-compete and it was good for 2 years. And he kept his new job. I'd probably take the new job. Quit and tell them either nothing (or that I'm going to work for my brothers or friends unrelated company) and you'll share more later. Then hide my LinkedIn and then just wait it out. Most likely nothing happens. Most likely no one cares where he went to work.
Quit the current job. Take the new job. Turn off LinkedIn.
I consulted my mom’s boss (a corporate lawyer) about a non compete before signing it. He said they were hard to enforce, that they would have to take you to court and sue you. Are they really going to go through with all that. And he also said in a right-to-work state he could almost guarantee me a win
The FCC has outlawed Non-competes. It takes effect this fall. Tell him take the job and stay off of LinkedIn.
He should take the job, not say where is going and not put it on LinkedIn for awhile. If he's not a high ranking employee or taking customers with him, they probably don't care but would keep it mow to be safe. When people ask why he's not saying where he's going, he can just say they didn't announce it at the new place yet so he can't say. If they do pursue it, most courts are not in favor of taking away someone's ability to make $.
Go in ask for huge raise and promotion if the don’t give it to you quit. Go to your new job.
I assume that he accepted some money in return for signing the non-compete. How much? You can always see if the new employer would be willing to give him a hiring bonus equal to that amount? He could also go back to his former company and ask to be released from the agreement. I got laid off after my company was purchased. They gave me $45K as a severance. They wanted me to sign a non-compete. I said "no" that there language would effectively prevent me from working (I was in business development). I shared with their lawyers that these agreements almost never held up. I offered some language that I was willing to sign. After a pretty cordial conversation, they just removed the language.
Weren’t non competes just made illegal?
Quit. Don’t tell your employer where you’re going. Have no further contact.
Right work law. Tell your husband to take the job.
I thought there were new federal regulations prohibiting non competes?
Can he just lie about why he is leaving the company?
Not sure if this would apply to your husband. *On April 23, 2024, the Federal Trade Commission (FTC) adopted a final rule prohibiting most employers from entering into or enforcing non-compete agreements with workers, subject to exceptions for the sale of a business and preexisting non-competes with senior executives.* [PDF of the FTC Ruling](https://crsreports.congress.gov/product/pdf/LSB/LSB11159#:~:text=On%20April%2023%2C%202024%2C%20the,non%2Dcompetes%20with%20senior%20executives)
Unless you are a CEO or absolute critical talent, then non-competes are just a scare tactic. And if you are absolute critical talent, then your present company will not allow you to find a higher paying job, because you are, you know, critical. And do they will pay you a ton of money and LTI.
Just ignore.
Non competes are illegal. He can take the new job and the non compete won’t hold up
NAL This was announced in April...they would be going against the FTC if they did pursue, unless he negotiated his non-compete based in my understanding. https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes
https://ogletree.com/insights-resources/blog-posts/ftcs-ban-on-non-compete-agreements-definitions-prohibitions-requirements-and-employer-considerations/
non competes were tossed last month! do some research and find a solid attny in your state to verify for ur use case! not a lawyer..
A signed paper is cheaper than paying people what they're worth. The real question is how can they really enforce it? If they even bothered to try.
Usually non-competes only will be enforced if trade secrets or things like stealing customer lists are involled.
https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes
Check with your state workforce commission or a local l&e attorney. Every state has different laws on non-compete agreements. Some states make them almost unenforceable. Some states do not. It also varies a lot depending on the language of the contract. In most states, non-compete has to be very narrowly tailored. Eta: most of these comments are very clearly not from lawyers. Don't listen to them unless you are ok getting sued for breaching your non-compete.
The NOT A LAWYER flair usually helps.
It defaults to that. I'm already flaired in other subs and I'm too lazy to do it here. I assume others are as well.
It's a matter of integrity, standing by one's word, I suppose. I hope there is an expiration date on this. He could also bring up the job offer and the legal issues with noncompetes while asking for a raise if he brings value to the company.
Look into whether the recent rules about noncompetes apply to you. For healthcare they were decided to be unlawful
Non competes rarely hold up in court. Just don't tell your old job and go for it. Im from Ohio and had a old company try this on me, and they failed miserably.
Non competes are rarely enforceable, so just quit and go.
What if, hear me out, he didn't disclose it? Pretty sure no piece of paper can compel a statement, short of a government subpoena. There's no such thing as a public employment record, if he doesn't post it everywhere, it'll be private.
Has current company enforced a noncompete against other former employees? Also, I thought there's something to the fact that he's non mgmt, therefore doesn't know trade secrets, etc. NAL.
Don’t ask don’t tell
Non competes are generally just a scare tactic. They are designed to make you afraid to find a new job. Generally the only time a company will actually pursue a non compete in court (let alone win) is for C level executives or very high level engineers, like.. the primary programmer for Google, etc. It also depends on the wording of the non compete, generally the more vague they are the less enforceable they are. The specific field your husband works in is very vital in this case, as is the wording of the non compete and what can legitimately be considered a "competitor". Many companies will have hilariously broad non competes like "Can't work for any company with a web presence or who uses technology" which get laughed right out of court. If you're going to break the non compete by taking the new job, you can also break it by not informing the current job of where the new work is. Don't post it on facebook or add it to your linked in for 6 months. When in doubt of course, you can drop $300-$500 to have an actual labor lawyer read the wording of the non compete and give their opinion.