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Should You Sign That Agreement Not to Compete?
By Joyce Lain Kennedy

Dear Joyce: I have been notified that my employment at a dot-com will end abruptly next week. I will get a two-weeks' severance package, but along with agreeing not to sue, I've been asked to sign a non-compete agreement that would keep me from working in a similar industry in this area for a year. Please answer quickly. -- S.J.

Dear S.J.: Please see an employment lawyer quickly. Every employer seems to have suddenly discovered non-competes, forcing you to sign going in, while you're on the job or on the way out.

Whether or not the non-compete agreement is enforceable depends upon several factors, including state law. Some states, highly valuing a person's right to earn a living, assign the non-competes to shredders. Other non-compete clauses are not taken seriously because they are unreasonable. But some covenants promising not to compete with your employer are solidly enforceable. The trick is to know what's in yours plus the statutes where you live.

Because you are the one who was invited to sample the outside air, I'd pass on your current employer's efforts to control your future. The fact that you've signed such an agreement can scare off potential employers by the drove. Why take the risk for so little gain?

Research Resources. You're in a time crunch and might not be making the best decisions right now with adrenaline fogging your brain; that's why I suggested you consult an employment lawyer.

If you weren't in a pinch, you could self-help, at least to start. I cruised the Web to see what's new since the last time I looked. Quite a bit. Search engines offer pages and pages of non-compete agreement screens.

Best Advice on Non-competes. The law book publisher Nolo has the shrewdest reader-friendly articles on the topic. Search on "non-compete agreements" and you'll find that trade secrets and sensitive business information are the operative words. This can be a formula, pattern, compilation, program, device, method, technique or process that the employer has spent time or money to obtain.

Whether a judge will enforce a covenant not to compete, says Nolo, is always an iffy question. The protection of legitimate proprietary rights is up against your right to earn a living in a free market. Reasons a non-compete may be torn up include these:

It lasts too long, covers too wide a geographic area or is too broad in the types of business it prohibits.

The agreement may be judged to be not worth the paper it's written on because the information revealed to the worker isn't really all that sensitive, thus no valid business purpose is served.

Breaking the Agreement. A Web site with a scrappy name, BreakYourNonCompete urges people who feel as though they've been victimized by a non-compete to cast off their chains, offering five "free samples" -- that is, previously successful arguments used to escape non-compete agreements and even to seek damages from the employer. The strategies range from the familiar claim that the agreement is too broad to the radical claim that the employer directed you to engage in illegal conduct during employment.

The site was launched last year by a corporate lawyer and offers 16 strategies for getting around non-compete clauses. Some are industry specific, such as for doctors and lawyers, but many deal with general issues, such as whether your employer has fairly reimbursed you for overtime.

Negotiating. Nolo suggests that before rolling over in signing a non-compete, your best first step might be to negotiate some of the finer print with your employer. Pointers:

If you're asked to sign as a condition of a promotion, you can ask for money to compensate you for signing. Of course, your fatter wallet will decimate a later claim that you were forced to sign.

Demand to have it worded to take effect only if you leave the job voluntarily. (Using it against an employee who was laid off or fired is onerous -- Joyce speaking.)

Ask for the prohibited competition to be named specifically.

Send career questions for possible use in this column to Joyce Lain Kennedy at Box 368, Cardiff, CA 92007, or e-mail her at jlk@sunfeatures.com. Sorry, the volume of mail makes personal replies impossible.