Breaking a Candidate’s Noncompete Agreement

You’ve found the perfect candidate. You like the candidate and so does your client. Your client offers the job, but there’s one problem. The candidate informs you that they signed a noncompete agreement with their current employer that might not allow them to accept the position.

You’ve put in so much time and resources to find the candidate. And, your client insists they must hire this particular person—there’s no one else like them.

So, what can you do about the noncompete agreement?

What is a noncompete agreement?

A noncompete agreement is a legal document that an employer and employee agree to. The agreement is intended to prevent employees from leaving their employer to work for a competitor. Noncompetes help employers ensure that their information, clients, and trade secrets stay with their company.

The noncompete agreement typically includes:

  • The length of the agreement
  • The geographic region the agreement applies to
  • The things the employee is not allowed to do

For example, a noncompete agreement might say the employee cannot work for a direct competitor within a 50-mile radius for one year after employment is terminated.

Because a noncompete agreement is a legal document that is agreed to and signed by the employee, breaking a noncompete agreement might be difficult (although not always impossible).

Breaking a noncompete agreement

Breaking the noncompete agreement might be possible. This will take a lot of effort by you, the candidate, and client. A lawyer will likely need to be involved in the process. And, the ability and ease to break the noncompete will depend on the specific situation.

The candidate can talk to their current employer about breaking the noncompete agreement. The employer might not actually care about the noncompete. If the employer is willing to break the agreement, the candidate should get a release signed by the employer.

If the employer is not willing to release the employee, there still might be a way to break the noncompete. With legal help, the employee might be able to prove that the employer cannot enforce the noncompete. A lawyer might be able to prove the noncompete is too broad because it is unreasonably long or covers an unreasonably wide area.

The employee might have to go to court to break the noncompete. A judge will decide if the noncompete is enforceable. The judge will look at the noncompete agreement and state laws before making a decision.

Because going to court costs a lot, the candidate’s current employer might be willing to make a compromise outside of court.

Your client might be able to help the employee with financial resources or use of the corporate lawyer.

Hiring someone with a noncompete agreement

Even if someone has a noncompete, your client might still choose to hire them.

In this case, your client might be liable for interference with contract. If your client encourages the candidate to ignore the noncompete, especially if malice is involved, the former employer might sue your client. You might be liable too, especially because you are the communication between the client and candidate.

Violating the noncompete agreement should not be encouraged by you and your client. Also, your client should not ask the candidate to bring clients or other information from their former employer.

Once the candidate is working for your client, the former employer can sue the employee for damages, attorney fees, and court costs. The former employer might request an injunction, which would immediately require the employee to stop working for your client. Not only is the employee out of a job, but the injunction might prevent the employee from working for longer than the noncompete would have.

Your next steps

Breaking a noncompete agreement can be tricky. You, your client, and your candidate probably shouldn’t handle this alone. A lawyer can help you decide what course of action to take.

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