Do I need an attorney to look over this non compete?

May 3, 2023 8:15 PM

Got a job offer last week that I've been working towards for some time. Yay! Just sat down to read the 16 page non compete, non disclosure, non solicitation agreement. Um, wow.

The job is with a company that's a subsidiary of a giant parent, and it's a very thorough document (also includes a binding arbitration agreement). I actually read through it, but I'm an engineer, not a contract lawyer, so idk if I should pass on this job, STFU and sign it, or pay a lawyer for a consultation. Have you gone through a similar experience? What did you do and why? How did it work out for you? Would you do anything different?

posted by disconnect to Work & Money (12 answers total)

Lawyer, preferably one who's dealt with this company before. Depending on a lot of factors, sometimes (often) you can negotiate away or down some of the provisions.
posted by amtho at 8:30 PM on May 3, 2023 [4 favorites]

Here's an answer I wrote for a related question a couple years ago. The key part: consider asking your friends or professional networks for a referral to a lawyer who could help you identify any bits that you may want to negotiate (and help you decide how).

I did most of my own analysis for my agreement with a small company, but I had informal support from a loved one who had seen lots of these types of contracts and could easily and quickly tell me what aspects were normal. That gave me confidence. I'm glad I negotiated a bit before signing, because the process gave me insight into the company I joined.
posted by dreamyshade at 8:37 PM on May 3, 2023 [1 favorite]

If this is a generic bigtech type company, and if you are going in as a relatively low level position (like below director level), and if you have nothing unusual yourself (no patents, no side gigs, etc), then I think in practice it'll be a waste of time to have a lawyer check it out. Like there's nothing wrong with doing so, but I think what you'll find is the lawyer will say they're overbroad but rarely enforced and unlikely to stand up in court. And the company will probably not be willing to negotiate much (again, if this is bigtech and you're not especially senior).

I'm not claiming this is the 100% safe answer, but I am sure this is how the vast majority of folks play it out.
posted by inkyz at 10:31 PM on May 3, 2023 [9 favorites]

Have a lawyer look at a contract written by lawyers.

Cost will be about an hour of their time (in my region, I would expect $400 - $800), and this will allow you to understand what you are signing, what is actually enforceable, and what you could push back on or should walk away from.
posted by zippy at 10:33 PM on May 3, 2023

(NZ here, and a consultant, not an employee but) I send complex contracts to my lawyer. Peace of mind. Obv. non-compete clauses mean your skills stagnate if your role is (or becomes) narrower than your range of skill.
posted by unearthed at 1:07 AM on May 4, 2023

I agree with everyone here, even if you're not at the Director level. I say that because I left a laboratory job for which I'd blindly signed something, and I completely lost access to a dataset that I'd generated before taking the job (pulling from public datasets, published literature, etc.) as independent work towards preparing and publishing a very niche systematic review. This review was going to be my dissertation, and I took the job before I matriculated—I brought this dataset to the attention of my lab group and we'd started integrating some of its components into our work. WHen I left the job, all of that work I had done independently was locked away from me. I could not use it as the foundation of my dissertation. My home university would not touch this issue, and the lab group's parent company made it clear that they had no incentive to negotiate.

So... I don't sign anything without consultation these days. That was back in 2006 and it is still seared into my brain (along with a disdain for academia's fecklessness and industry's brutality—I am happily in the nonrofit sector as a consence). I would suggest expecting a 16 page document to call for ~2 hours of reading/review and anywhere between 15 minutes to an hour for discussion. In the US and the UK, I agree with zippy's estimate of the costs for this time. That is money well spent to know if and what real concerns may or may not be in your future (and it will also help if you can sketch how you imagine your future career path for the reviewing attorney, it will help them understand how that vision might conflict with the agreement and if there might be paths of least resistance to be aware of).
posted by late afternoon dreaming hotel at 1:42 AM on May 4, 2023 [11 favorites]

Absolutely worth spending a few hundred dollars on. The laws around noncompete agreements are changing every month.
https://hn.algolia.com/?q=noncompete

I once took a contract to a lawyer and every fifth clause he struck thru, and wrote in the margin, “per state law”. It was eye-opening.
posted by at at 4:58 AM on May 4, 2023 [4 favorites]

Do you know anyone who's worked there? Ask what they know about the enforcement of non-competes. If the company says it's rarely enforced, ask them to verify this.
posted by theora55 at 7:16 AM on May 4, 2023

If the non-compete is ever contested, which laws apply? If you are in one place and the parent company HQ is in another, that may be relevant. Agree that there are too many factors to not have your own legal review.
posted by I_Love_Bananas at 7:18 AM on May 4, 2023

Without making this too much of a back-and-forth, I do want to add that if a clause is unenforceable under state law, you don't need a lawyer to strike it out before you sign - that's what it means for it to be unenforceable. In almost all situations at this kind of tech job, the time to bring in a lawyer is when you are thinking about doing something specific that might be in breach - you have an idea for a new product that competes with what your company does, you want to leave to join a competitor, etc - but before you actually commit yourself to that course of action or put anything in writing about it. At that point your lawyer can advise you on the safest way to proceed.

There are certainly times when your lawyer will say "well, you're screwed because your contract has clause X in it" but the number of times when a prior review would have caught it and the company would have been willing to change is tiny, and in general it's not worth it unless you have special circumstances that make it more likely. And, again, there's no harm in having a lawyer review, and if you're taking this kind of job you can presumably afford it, but it's probably a waste of money and time.
posted by inkyz at 8:53 AM on May 4, 2023 [2 favorites]

I left a laboratory job for which I'd blindly signed something, and I completely lost access to a dataset that I'd generated before taking the job (pulling from public datasets, published literature, etc.) as independent work towards preparing and publishing a very niche systematic review.

Never put your personal IP on a system owned by somebody else if you want to have access to it after you leave. And yes, lawyer.
posted by JimN2TAW at 11:28 AM on May 4, 2023 [1 favorite]

I’m a software engineer. I signed a non-compete in first job. In second hand onwards I just said no. I happily signed non-solicitation and non-disclosure. I had two employers try to get me sign one, but they did not insist once I said it was a show stopper for me.

Both were smaller companies where the person hiring me was CEO.
posted by creiszhanson at 3:21 PM on May 4, 2023 [1 favorite]