While it is prudent and advisable to seek the assistance of a corporate or employment lawyer to review a non-compete agreement, non-solicitation agreement, or a document-retention policy before signing, for most people very little realistic options exist other than sign the agreement. In other words, normally the choice left to the employee is: (a) sign the agreement or (2) not have a job. So, for most of our clients, they come to us having just left employment or about to leave. At that point, the agreement is already in place.
This was true of “John”, a client of our firm, who came to Martinson and Beason, P.C. having just left his employment as an insurance agent for a prominent insurance and investment company. John had an executed non-compete agreement that included provisions prohibiting the solicitation of current or former clients of his employer and provisions prohibiting him from keeping documents that are the property of the employer.
John approached us with questions regarding the enforceability of the agreement and what his options were. The enforceability of these types of agreements can, often times, be extremely fact-specific and nuanced. This case was no different. As an initial matter, we advised that even in instances when the non-compete may not be enforceable, that may not keep the employer from trying to enforce them.
For example, an employer may want to use its finances (e.g. deep pockets) to squeeze the former client into submission. So even if the agreement and perhaps the lawsuit may not have much teeth to it, if the employer has the finances and the will to continue to press the lawsuit, often times they can leverage the employee. It is important that the employee be ready to defend herself vigorously and fight for her rights to exercise her trade.