work free(lance) or die
October 10, 2012 9:51 PM   Subscribe

New Employer wants to hire me part-time and will forbid me from working other part-time jobs in same professional field in my city. I don't know yet if I'll be "freelance" or "on staff", but the (low) quantity of work and (low) pay equals freelance status in my mind, but freelancers should be able to cobble together many jobs in their field and city, right? How do I get around New Employer's so-called "noncompete" agreement? I want to work for this (prestigious) company but cannot quit my other jobs yet. What is my bargaining position?
posted by Jason and Laszlo to Work & Money (24 answers total)
Could you work with the employer to define "same professional field" very narrowly? For example, say you configure web servers. Rather than promising to "configure web servers" only for RealBigCo, you could promise to "configure iWidget clinical trial software for no other Fortune 500 companies during weeks in which you also do the same work for RealBigCo" -- this is a little too specific, maybe, but you see where I'm going with the idea, yes?

If that still leaves you at a disadvantage, try to make sure it's easy for you to leave the contract if it's not working out. That is, try to assure you can work for whomever you wish on the day after you end your association with them.
posted by amtho at 10:06 PM on October 10, 2012

If your new boss wants your time, s/he needs to pay for it. Your bargaining position depends on your skills and their scarcity but it's not a reasonable request, IMO.
posted by Fiasco da Gama at 10:07 PM on October 10, 2012 [7 favorites]

How do I get around New Employer's so-called "non compete" agreement?

Politely decline their offer and find a more desirable position with another company.
posted by Pudhoho at 10:16 PM on October 10, 2012 [8 favorites]

"I want to work for this (prestigious) company"
posted by Jason and Laszlo at 10:17 PM on October 10, 2012

Non compete agreements are not good and can really hamper your ability to earn a living. I have seen this happen to a close in-law. Unless you are desperate for work, hold out.
posted by roboton666 at 10:31 PM on October 10, 2012 [4 favorites]

The quantity of work and amount of pay have no bearing on whether this is freelance or not. Freelance is getting paid a set fee upon producing a specific thing.
posted by desuetude at 10:34 PM on October 10, 2012 [1 favorite]

I'll be the first to answer your real question: What's your bargaining position?

If you don't really need the job? You're in a great position. Tell your point of contact at prestigious company to shove it.

If you want to work for this 'prestigious' company? You don't have a bargaining position.
posted by BrandonW at 10:35 PM on October 10, 2012 [4 favorites]

What is my bargaining position?

"Sorry, if you want me to sign a non-compete clause, you need to hire me full time. If I'm going to work for you part time, I need to be able to take on other clients."

You don't have anything else to bargain with. Either they want you, or they don't.
posted by His thoughts were red thoughts at 10:38 PM on October 10, 2012 [42 favorites]

In a few jurisdictions, non-compete clauses are legally void/not enforceable. Or the clauses are not enforceable unless they pass some particular test (being "reasonable" or protecting the company in a particular way, etc.)

I would suggest checking into the rules or at least precedents in your area if you haven't already.
posted by needs more cowbell at 10:46 PM on October 10, 2012 [3 favorites]

Have you signed this agreement yet? If not, simply line out the offending part and hand it back. You'd be surprised how often this works.
posted by Ookseer at 10:58 PM on October 10, 2012 [11 favorites]

I am a freelancer, and I have frequently had those clauses removed from contracts or modified. These are some of the things that I've stated, feel free to adapt as to your situation:

-In person or by email, "As a freelancer, I have several clients; this clause (noncompete) would impair my ability to make a living. Can ths be removed? (The response was often yes).

-In response to a concompete clause with the phrase "cannot take work from our competitors and clients" I stated that I was a freelancer and already had several clients, which may already include a competitor. To determine this, I would need to see their list of competitors and clients. They subsequently volunteered to remove the clause.

- A few have not agreed to remove the clause, but agreed to have the words modified. This includes a very narrow definition of the work ( ie. old european paintings - but unless it involves all art or whatever your specialty is, you will hav additional work still available), time (up to x months or fr the duration of this project), or only for clients they introduce you to, etc.

If they have you sign a compete clause as an employee, ask to tack on the time duration. Also, if you are truly going to be freelance, think outside the box. If they are limiting the location, then find a similar industry in different cities, etc.
posted by Wolfster at 11:09 PM on October 10, 2012 [32 favorites]

Seconding Ookseer. Until you've signed the contract, everything in it is negotiable.

It might be that they've just handed you their standard agreement that they also use for full-time workers and won't balk at removing or altering that clause. Or they may be completely rigid, but you won't know until you ask, eh?

Personally I think it's unreasonable for them to ask for all of your time (by forbidding you from doing any other work) but only pay you for part-time work. It's up to you whether the prestige of the job is enough to make up for that.
posted by hattifattener at 11:46 PM on October 10, 2012 [5 favorites]

I used to hire freelancers and we put a non-compete in the contract. But it was there to stop the exact same piece of work (in this case, technical writing on topic x) for a competitor. The freelancer could still perform their role very happily elsewhere writing on topic y. We defined the topic quite narrowly and if we hadn't our freelancers would have told us to get stuffed.

Regardless of what your employer tells you about their view, if you're getting crap pay and you're signing up to a contract that restricts your ability to earn then it's a no brainer.

The conversation you have is: I'm happy to work full time exclusively; or I'm happy to work part time non-exclusively. I'm not going to work part time exclusively for you. Any non-compete I sign must be non-restrictive on my ability to trade although I am happy discuss reasonable restrictions to protect your investment in my time.
posted by MuffinMan at 1:10 AM on October 11, 2012 [10 favorites]

The bottom line is that it is completely unreasonable of them to expect you to forgo the opportunity to work in your field, industry and city of residence if they aren't going to pay you commensurately.

What you do with that is up to you. Since you want to work there, it sounds like your only option is to negotiate for more reasonable terms. Either they up your hours, up your pay, relax their restrictions, or some combination of the three. Your negotiating position is that their current terms are truly one-sided and unreasonable. In order to negotiate, you'll need a counter-proposal. Actually, you'll need one to open with, and likely others if they reject it and don't make their own counter-proposal that you find satisfactory.

Consider how the terms could be adjusted so that this situation is workable, then leave yourself room for some back and forth. If after negotiations the terms still suck, you either suck it up and take the job or walk away. I suppose you could also ignore the terms you don't agree with and do other work anyway, but if you do, you should have a reasonable idea of the likely consequences if they find out. Most likely, they'd fire you, with the possibility that someone ends up tarnishing your reputation in a way that is difficult or impossible to prove. My guess is that anything more than that wouldn't be worth the hassle, though they might not pay you what they owe you..
posted by Good Brain at 1:23 AM on October 11, 2012

Legally, a freelancer is someone who works for multiple clients. If the freelancer works only for one company it is a violation of labor regulations and potential tax evasion. Point out to them that they will be in violation of labor regs and tax law; then there two ways to deal with that - one, you work for mutiple clients, including them; two, they want your exclusivity, in which case they should hire you as an employee and pay payroll taxes and unemployment insurance and so on.

Finally, be sure not to sign anything that makes you liable for the payroll taxes or liabilities arising from them treating you as a freelancer. It is their risk not yours. (I had a company try to do this with me once).
posted by zia at 2:48 AM on October 11, 2012 [4 favorites]

Tell him he's essentially in a position to bid for your time.

Right now, all of your other opportunities/existing work have the highest bid.
posted by Wild_Eep at 4:51 AM on October 11, 2012 [1 favorite]

Is the issue that the deal you're being offered by this company is unworkable (i.e. "we'll pay you $10K a year to work 15 hours a week, but you can't work for anyone else and you also aren't eligible for benefits")?

Because if so, you just can't take the job. No matter how prestigious the company or how much you want the gig. At the end of the day, it's about making a living. Think of it in terms of the old saying about Hollywood. They call it "show business", not "show fun" or "show friends".

Now, if the issue was more that, with the terms they've proposed, you could have other clients, but they don't want you to (you were offered $50K and benefits for that same 15 hour week), then you have to decide what your priorities are. It sounds like you really want to work for these people, so maybe the pay cut is worth it to you.
posted by Sara C. at 5:09 AM on October 11, 2012 [4 favorites]

Having a friend who is in an industry involving non-competes all the time, she (who is one of the top in her field, by the way) insists that non-competes are simply for bullying and she can never think of a time when they are actually legally binding at all.
posted by TinWhistle at 5:48 AM on October 11, 2012

If this position is guaranteed to lead to full time work then you have to bite the bullet but you should ask for some written guarantees. Otherwise you have a few choices.

1. Sign the form and lie. Do freelance assignments under a pseudonym.

2. Work for them as a freelancer instead of a part-time slave.

3. Look elsewhere for something that pays the bills.
posted by JJ86 at 6:34 AM on October 11, 2012

Having a friend who is in an industry involving non-competes all the time, she (who is one of the top in her field, by the way) insists that non-competes are simply for bullying and she can never think of a time when they are actually legally binding at all.

It's true that many courts frown on them. It's also true that in some jurisdictions they are not binding at all. But litigation is expensive. Please don't just think you can tear up the noncompete when it isn't working for you. If your plan is to ignore it, speak to a competent attorney in your jurisdiction before you sign so you know what you are getting into.

You've got to negotiate this. Personally, I like how Sara C. put it, above. It's not clear what your bargaining position is; I get that you want to work for this company. If you can live with what they are offering, and still want the job, you take it. If you can't afford to live on what they are giving you, that's another story entirely.
posted by gauche at 9:31 AM on October 11, 2012

Is this a media position? In radio, the kind of work you do for the station has some bearing on whether an employer will let you work other part-time jobs in the same city. People who work as board operators can usually work for any number of stations within the same market - there's no conflict, because your work is anonymous as far as the audience is concerned.

So if you're an on-air personality, the station has something invested in your brand being associated with them exclusively, so they would be unlikely to let you work as an announcer at another station in the same market (city). But they might let you do some other kind of job there, as long as you weren't on the air.

I worked as a part-timer on the air for two different radio stations in the same city, and it was okay with both managers because the formats were different, so the stations weren't competitors.

Lower-rung jobs in radio and television are notoriously ill-paid. Most people who do board op work at my station also have a second job. And as a part-timer, there's no way you could make it otherwise. Most station managers understand this. Not sure if any of this would be applicable to your field though.
posted by cartoonella at 9:31 AM on October 11, 2012

insists that non-competes are simply for bullying and she can never think of a time when they are actually legally binding at all.

In California, an overly-simple explanation is that non-competes are not binding. The more precise answer is that they are, in some circumstances, binding and can be enforced.

A lawyer looked at one of my contracts, and described the test they applied, which I can only inexactly remember was that the noncompete had to be narrow in time and area of non-competition.

This stuff is state-specific, so before you assume 'cannot be enforced' where you are, talk to a lawyer familiar with these rules in your state.

Will they be enforced is another matter. I am not aware, in my industry, of a company enforcing a non-compete for a sub-VP-level position. I'm sure it can happen, but enforcement = expense, and most companies have better places to spend their money.
posted by zippy at 10:11 AM on October 11, 2012

In my experience (as an IT monkey in NYC), non-competes are overwhelmingly boilerplate, and aimed at a small minority of employees who are high-visibility, or work on highly proprietary projects. If you don't know why it should apply to you, probably is isn't actually meant to, it just means that HR and Legal can't be bothered to keep up more than one standard contract and most people sign whatever you put in front of them anyway.

It being a part-time position, you likely have no leverage to speak of. Traditionally, though, the options are 1) negotiate a full-time position or contract with a severance agreement that compensates you for the loss of employability for the duration of the non-compete post-termination, or 2) as mentioned above, clarify the scope of disallowed employers (say, to direct competitors X Y and Z, or positions involving specific technologies).

(Also, in my (indirect) experience, many non-competes would be laughably unenforceable in court. The nasty thing is, though, they don't really have to be enforceable. They only have to provide a deterrent to you, and more importantly your potential future employers. Is it worth the risk for a new company to hire Jason and Laszlo when he (they?) might be sued and harassed due to a non-compete agreement hanging over his head? If you don't know the answer already, then it's probably no.)
posted by The Prawn Reproach at 11:28 AM on October 11, 2012

Why do you want to work for these people so badly? They may be prestigious, but if you can't feed yourself, not good. Also, if you're self-employed, the more irons you have in the fire means more contacts, more referrals, more chance to get a new contract. If you limit yourself to the part-time with restrictions, even if this company is prestigious, you are really limiting your chances to find another 'plum' job, to gain more referrals, expand your portfolio, and to network.

A privacy agreement or nondisclosure would be one thing, but this sounds like you're getting screwed.
posted by BlueHorse at 9:57 PM on October 11, 2012 [1 favorite]

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