Many employees sign non-compete agreements without giving it a second thought, but then a time comes when the company starts slumping, they get a new boss that they do not particularly like, receive a better job offer from a competitor of their current employer, or they want to strike out on their own. All of a sudden, the non-compete restraints come out of the shadows looking rather menacing. Should the employee take a new job or open a competing company and risk a lawsuit from the former employer? Should she or he discuss the non-compete agreement with the current employer and see if they’ll agree not to enforce it? Should she or he forego the new job in order to avoid facing the wrath of the former employer and the legal costs associated with it?
Many employees will seek advice from former co-workers, friends, or family, or on the internet. However, seeking information about enforceability or validity of non-compete agreements in Texas on the web is like seeking information about a possible illness from WebMD. There are many general statements, but no realistic explanation of how it applies to the employee’s particular situation.
This is, of course, because the area of non-compete law in Texas is a gray area. Rarely is an entire non-compete agreement invalid or iron-clad. Most of the time, the agreement’s force depends on the specific language of the agreement, the type of business the employer is involved in, what employee did for that employer, for how long, whether the employee received confidential information, goodwill, or stock options from the employer, whether employees’ duties changed at any time during the employment, whether the employer has “unclean hands,” and many other factors.
So, when you start wondering about whether your non-compete will hold you back in accepting a job offer or opening your own business, do yourself a favor, and after doing online research and talking to your friends or co-workers, consult with an attorney in your state regarding whether your non-compete agreement is enforceable as well as what is the likelihood of the employer enforcing the agreement. A good attorney will help you structure your departure from the former employer in a way that will minimize the risk of a non-compete lawsuit, will help deflect any bullying attempts from the former employer, and will be able to provide you with a realistic risk assessment of any non-compete-related litigation. When facing a possible non-compete enforcement situation, an ounce of prevention is worth a pound of cure and being proactive about it can save major headaches down the road.
Leiza litigates non-compete and trade secrets lawsuits in a variety of industries, and has advised hundreds of clients regarding non-compete and trade secret issues. If you need assistance with a non-compete or a trade secret misappropriation situation, contact Leiza for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.