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Help me understand my non-compete clause

Discussion in 'BBS Hangout' started by Sajan, Aug 19, 2013.

  1. Sajan

    Sajan Member

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    NON-COMPETITION AND NON-SOLICITATION. You agree that both during your employment by Company A and for a period of two (2) years after the voluntary or involuntary termination of your employment with Company A:

    C. If you have worked for Company A in a consulting or other non-sales capacity during the last three years of your employment by Company A, you will not provide services directly or indirectly related to your employment at Company A to any Conflicting Organization in the United States or in any country in which Company A has a business interest. However, you may accept employment with a large Conflicting Organization whose business is diversified, and with a portion of its business that is not a Conflicting Organization, provided that Company A, prior to your acceptance of such employment, shall receive separate written assurances satisfactory to Company A from such Conflicting Organization and from you that you will not render services directly or indirectly in connection with any Conflicting Solution.

    D. Notwithstanding the foregoing, nothing contained in this section 6 shall prohibit you (after your termination of employment with Company A) from taking a position with a general consulting organization whose only Conflicting Solution is the provision of consulting services to the health care industry, so long as you personally do not thereby provide or assist in providing consulting services to a Client with respect to any Conflicting Solution.

    Company A provides software to hospitals. So does company B. If I leave company A, I figured I can't go work for Company B for 2 years after.

    What about working for a hospital that has Company B's software?
     
  2. CCorn

    CCorn Member

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    My understanding, but I imagine one of the lawyers on the board can explain it better.

    Company A does not want you to go to another software company and sell to their current clients.

    You will be fine working for a company that uses Company A's software, as long as they are not in the same business.

    All the contacts you have met in your time with company A are the intellectual property of company A. They don't want you using that property for the benefit of their competitors.
     
    1 person likes this.
  3. Sajan

    Sajan Member

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    Gotcha.

    Did you mean Company B in the 2nd sentence there?

    Basically I can't go and work for an competing company and screw over company A with their existing clients.

    My concern was the ability to work for hospitals that use not only company A's software..but also Company B's. Notice I am not working for Company B directly.
     
  4. CCorn

    CCorn Member

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    I just meant you should be able to work for a company that uses whatever software. You are not the competition, you are the consumer.

    Regardless, if you get the job I would advise having the company that hired you forward the no compete to their legal department before you put in your notice for your current job.
     
  5. Dave_78

    Dave_78 Member

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    Does anyone ever try to enforce these?
     
  6. McNultyisDrunk

    McNultyisDrunk Contributing Member

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    Sounds like Epic.
     
  7. Yonkers

    Yonkers Contributing Member

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    Yes. For various reasons from spite to loss of revenue.
     
  8. CCorn

    CCorn Member

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    Companies will find loopholes
     
  9. Space Ghost

    Space Ghost Contributing Member

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    There is a difference between a company enforcing a NCA and a court enforcing an NCA. NCA's vary from state to state.

    Ethics and intentions play a key role for a court to enforce an NCA.
     
  10. Air Langhi

    Air Langhi Contributing Member

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    Pretty sure they used to be 1 year non compete.
     
  11. the shark

    the shark Member

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    Is this in the state of Texas?
    If so, Texas is a right to work state, and this non-compete won't hold up in court.

    It's more bark than bite. Sometimes the hiring company will shy away from it as they don't want to go through the hassle of having a potential new hire dragged into court.

    I've gone through this with candidates of mine, and once the old company realized that the employee leaving wasn't going to walk away from the opportunity with the new company they backed down. Just my experience with these.
     
  12. Yonkers

    Yonkers Contributing Member

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    In the past that has been true. It still is generally but less so now.

    http://www.velaw.com/resources/TxSu...entallyChangesTexasNon-CompetePrinciples.aspx
     
  13. Mr. Clutch

    Mr. Clutch Contributing Member

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    They have you by the balls.
     
  14. ferrari77

    ferrari77 Contributing Member

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    Sports agencies, Entertainment/Talent agencies for sure.
     
  15. Pipe

    Pipe Contributing Member

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    Enforceability of noncompetes depends upon what state's law governs. In California, for example, noncompetes such as yours are not enforceable at all. In Texas, it depends.

    Without knowing more, certain aspects of your noncompete seem overbroad and probably not enforceable. Given the importance of your question, you should consult an attorney. At a minimum, you should consider disclosing your noncompete to your potential new employer who may have an attorney determine whether or not there is an issue.

    Standard legal disclaimer, this in an internet message board and YMMV.
     
  16. Pushkin

    Pushkin Member

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    Texas has radically changed its position on non-competes in the last few years. There was a time when you would expect a non-compete to be found unenforceable. Now, you should assume that they are enforceable in Texas.
     
  17. JuanValdez

    JuanValdez Contributing Member

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    Does Company B know you have a NCA? Would they pull the offer if they knew?

    I would consider taking the job and daring Company A to sue you. If you're a little fish and the damage you cause isn't significant, they won't bother (if they even find out). If you're a big fish... you'd be asking your lawyer instead of us. :p

    And, don't sign a non-compete with the next company.
     
  18. Felixthecat

    Felixthecat Contributing Member

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    I am still fighting my former employer in court...even a whole year after the contract expired.

    They used a non-compete to put me out of business and not because the contract was legal, but because I wasn't able to keep fighting in court financially and run a start up.

    I filed my counterclaim last month. :mad:
     
  19. Sajan

    Sajan Member

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    Well I work for Hospital A who is in process of implementing Company B's software over the new few years.

    I want to go work for Company A (a software company not based in texas) in the meantime and gain new experience. I am hoping one day to come back to Hospital A..or any other hospital for that matter in Houston that uses either company's software.
     
  20. Sajan

    Sajan Member

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    I forgot to add..I only got the full employee agreement a week before my start date and I had already put it in 2 weeks with my hospital. :-/
     

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