@kelsmom: It has been suggested by another poster in this thread that your son inform “his new employer” about the non-compete agreement. I disagree unless specifically asked by the new potential employer. But it doesn’t really matter what I or any other poster think, what matters is what your attorney recommends.
Telling a prospective or new employer of this agreement raises a few issues that are best discussed with an attorney licensed in your state. As a practical matter, it just makes it easy for the new prospective employer to move on to another candidate.
Plus, what if the new employer wants a non-compete agreement signed ?
I do not want to list all the issues that this raises as your lawyer should address them as a routine matter.
P.S. The only advice that you & your son should take from this entire thread is to consult with an attorney in the relevant jurisdiction (state).
The rest of the discussion should be viewed as discussion for entertainment & nothing more.
Disagree with the above. Unless you live in a state which absolutely prohibits non-compete, or have a signed advice of counsel letter, it’s the better course to disclose. Otherwise, what happens if the new employer gets the threatening letter regarding the new employee? Easiest course: get rid of the employee. Not fair at all, but easiest for new employer.
But OP has indicated that attorney advice is being sought, which is the correct course.
Best to discuss with your attorney as there are additional issues which some do not see. As this is not a legal advice forum, I will not detail those issues here, but your local attorney will address them with you and your son.
But, from a practical stanpoint, why lose a job before you have it ? Common sense should be used in this situation.
FWIW many companies in CA have “non solicitation” agreements instead of non competes where you are forbidden from soliciting clients and/or former employees for x number of years.
Publisher- that is terrible advice. Unless he gets a release from the non-compete or is advised by a lawyer that it won’t be enforceable, he absolutely needs to inform his new employer about it. That is simply dishonest and could cause a lot of problems later on. I do quite a bit of work in this area (in-house counsel) and in most situations this particular one wouldn’t hold up (since the company has stopped paying him), but without seeing the agreement and knowing the state law, I can’t say that for sure. He would really be getting off on the wrong foot with the new employer if he hid this information. There’s a way to spin it- i.e. that the old company essentially constructively terminated him by not being able to pay him.
Also- the provision against taking people with you or hiring them shortly after you get to the new company is called a non-solicitation clause and not a non-compete.
Our opinions differ, but neither matter in this case as only licensed local counsel with all relevant information can give appropriate advice.
Nevertheless, there is no duty to disclose unless specifically asked.
P.S. @crankyoldman: I understand your position as well as that of @MomofWildChild , but I disagree. Regardless of our thoughts, only an attorney in the appropriate jurisdiction with all relevant information should make this type of recommendation.
P.S. Remember the age old saying: In a town with only one lawyer, the lawyer will starve, but in a town with two lawyers both will thrive.
What’s wrong with asking the current ‘employer’ what’s going on, when they will return to work, or if they can be released? No one can be expected to remain on hold forever, and six weeks really is forever for most people.
It sounds like SIL would like to stay with his employer but is looking for another job because he needs the money. What is unreasonable about asking the employer for his job or a release?
Unless the OP’s kid and the current or former employer are in one of the few states that broadly makes post employment non competes unenforceable, even whether it is necessary to disclose a possibly applicable non compete to a subsequent employer without being asked would be a topic to ask a lawyer about.
My personal opinion is that he should not disclose but that he should ask an attorney. Most of our client employers would prefer you didn’t tell them because if you do you subject them to potential liability for interference with contract that they could otherwise avoid.
There is a difference between voluntarily disclosing a non-compete vs responding to a question either on the application form or in an interview. If asked, you risk termination for providing a false or misleading application if you do not truthfully answer. If not asked, I am generally with @Publisher, especially for an entry/non key position. Reality is, for higher level positions, especially those involving direct contact with customers/clients and/or proprietary information and processes, the employer likely will ask that question because they have practical and potential legal risks, especially in industries where non-competes are common.
To some extent, whether to voluntarily or not disclose, could also be a function of the dynamic/relationship with the potential new employer. The more of a “commodity” you are as an applicant, the less you want to volunteer a reason to be weeded out. If you are in a strong position, it may avoid future embarrassment or even termination to inoculate yourself by volunteering that the old employer has a non-compete over you but you have checked with your lawyer and you have no reason to believe that it is enforceable and/or applicable to the new employment, and you are happy to provide the new company with the relevant language. In all cases, it is prudent to get legal advice and know the answer before making a decision one way or another.
If you are asked about it, you have to disclose it, enforceable or not. If you are not asked about it, normally there is no reason to disclose, but there may be circumstances where it may be in your interest to disclose, e.g. you are going to get the job and you sense openness is a big cultural trait of the new employer or your new supervisor. Yes, of course check with a lawyer expert in this area in the relevant state first.
My husband went through a rough time because of a non-compete. It was more complicated because there were two countries involved, and he was further in his career, so the stakes were higher, but the moral of my story is to get legal advice.
I had a non-compete/non-soliticitaion for my dental partnership. I was young and naive, and poorly represented. Fast forward 12 years and the partnership was splitting. I had a superb lawyer who looked at it and laughed. He said too restrictive for zip code/profession and will never hold up in court. He told the ex-partner and his lawyer go ahead and sue, more money for dentmom4. They let it die. I set up a new office 3 blocks away.
Scant chance that the non-compete will be enforcable in this instance.
Low level employee whose employer has not paid him for 6 weeks & counting due to being suspended by state regulators.
Facts matter.
If disclosure is important to the hiring company, they will ask.
Your perspective–which is greatly appreciated and respected-- is that of a single hiring company, not that of an independent counsel familiar with the specific facts and circumstances of this case.
Because both employers appear to be in the same industry & location, the new prospective employer should be aware of the other labs’ HR practices regarding non-competes.
But, as with most aspects of this matter, we are all speculating. Only advice from properly licensed local counsel with knowledge of the specific facts & circumstances should be followed.