My S got a job in an independent test lab a year & a half ago. He signed a noncompete - no working at another lab in his industry in the state for I believe 6 months after leaving.
In August, the state suspended the lab’s license. S was assured by the owners that all would be quickly worked out & they would be back to work in no time. Last week, the state finally approved them to reopen, but it is a highly regulated industry & the “you’ll be working again next week “ has been postponed (who knows when he’ll go back). He has not been paid, although supposedly his medical insurance is still in effect.
He had a job interview with a new lab that is opening in the area. It sounds like they may offer him a job. He didn’t tell them about the noncompete when he interviewed, but he feels that he should do it now.
So … technically, he is not working at the first company. He hasn’t been paid in weeks. Is the noncompete binding in this scenario? Maybe it’s a silly question, but we are clueless. It doesn’t seem like it can be in effect if the lab isn’t open … but … just wondering what advice the forum members may have.
Contact an attorney in your state. He or she should be able to give an appropriate response after an hour or two of research.
P.S. An important consideration may be that your son did not voluntarily leave his employer. Since the lab did not continue paying him while under suspension, then it seems as though the lab “broke” the contract.
Also, in addition to six weeks of being unpaid through no fault of his own, your son was under a duty to mitigate any potential damages. The best way to do this is by seeking another job at similiar pay.
Nevertheless, it would be wise to get the opinion of an attorney licensed to practice in your state.
Definitely need a lawyer for this. Too many unanswered questions about current “employment”, type of industry, actual research performed, level of security, if any.
They aren’t open, but they are actively working to reopen. He doesn’t want to get into a jam & have no job anywhere. If the company he interviewed with really wants him, they may be willing to help him figure things out, but it’s also possible they will choose not to take any chances on hiring him. I wish he had told us about the noncompete when he initially took the job -but he needed a job at the time & really wanted the one he had, so it probably would not have made a difference.
Your son does not need to inform any future employer of the noncompete agreement unless asked specifically about that.
As the noncompete agreement is a contract between your son & his employer, it does not involve other employers.
Under the circumstances, suspended business and continued lack of payment for wages at six weeks and counting, it is unlikely that the agreement is still in effect. Nevertheless, always best to check with an attorney licensed in your state.
The reason for “not being paid” is important. If not being paid due to leave under FMLA, for example, then a noncompete agreement most likely would still be in effect. But under the circumstances of this case, I agree with @momofsenior1.
“Your son does not need to inform any future employer of the noncompete agreement unless asked specifically about that.”
Maybe. Maybe he does. This is why he needs to have an employment attorney to review the agreement. Some agreements specifically state that the employee needs to disclose the existence of their agreement to any prospective employer, and some even specify when and how it needs to be done.
I think he should ask his current ‘employer’ what is expected under this clause. It may be that they are fine with him finding another job.
He can’t be the only one who needs an answer to this, who needs a paycheck on a regular basis. Have they all applied for unemployment? A requirement of receiving those benefits is usually that he apply for jobs and actually TAKE one if offered.
Exactly. If in California, he can safely ignore it. (non-competes are for C-level execs/officers. The State Labor commission take a dim view of an employer making someone starve rather than find another job as a lab rat.)
For the life of me, I cannot understand the rationale behind a noncompete for his position. No trade secrets involved, no way he could take customers away, etc. It strikes me as a play on the part of the company to keep their employees from finding a better job in the industry … makes me think of an indentured servant. But my opinion is irrelevant, and we will consult an attorney. Thanks to all for the advice!
@BunsenBurner: Hard to imagine any court enforcing such a contract clause–especially if it states, as you wrote, “to any prospective employer” and “some even specify when and how it has to be done.”
He definitely needs to talk to an attorney. The law is vastly different in different states. For example, in Illinois unless you have worked at a place for two years or they paid you extra money to sign the non-compete, it cannot be enforced. Many states won’t enforce this sort of non-compete unless the lab has a good reason why it needs one. Given the circumstances it will be hard for them to show that.
What you said was exactly the reason most non-compete agreements are going to be unenforceable in WA.
Bottom line - read the agreement carefully. A friend skated through a very restrictive non-compete… the non-compete was tailored to sales and marketing folks… there was nothing in it regarding working for a startup that has no sales. Oops. After that, the company quickly updated their forms.
In the OP’s case, my understanding is that OP’s son is going to do similiar work at another lab.
Hard to understand, as OP wrote above, the reason for the noncompete agreement other than to frighten the lab employee from seeking other similiar employment.
OP: Did the current employer give your son any special training ?
Usually these agreements fail for being too broad with respect to time, geography or types of jobs. In this case the restriction is: “Not working in another lab in this industry in the state for 6 months after leaving.”
If stated accurately, it seems too broad to be enforced. Imagine if the state was California and the OP moved from San Francisco to San Diego, for example.