Archinect
anchor

Asked to sign a non compete form as a drafter (second employment). Will this impact my primary employment?

WITgrad

I am concerned on how tight or wide reaching this agreement could be. Here is what is going on: I am currently, happily working with an arch. firm full time. In my spare time, I've found a company that would like me to draft, hand render, and on a limited basis, design new limestone products (Benches, planters, mantles, etc.).

Non-compete agreement states: For during and 5 years after employment I shall not "perform services (as an employee, consultant, officer, director, independent contractor, principal, agent and/or otherwise) that are similar to Receiving Party's current duties or responsibilities for any person or entity that, during the Term, engages in any business activity in which the Receiving Party has obtained information from the Disclosing Party."

First off, is this "similar" enough to what I do on a daily basis in my firm; design, draft and render? What about in 3 years when find a new evening job and I want to draft, say, wood furniture. Is this going to stop me?

Second, Is this just saying that I can't steal the companies client and keep them to myself? Or is it saying I can't provide any related information or services for the 5 year post employment term?

 

Thanks guys, just looking to make ends meet!

 
May 18, 17 6:41 pm
shellarchitect

Think it's saying you can't steal clients

May 18, 17 7:19 pm
kjdt

This type of broad non-compete agreement is routinely found to be unenforceable in most fields anyway, so I wouldn't worry about it too much.  What would be enforceable is that you could not use any of this companies' designs, or anything markedly similar, in your future work (but that would be true without this agreement too), and you could not poach their clients, and arguably you could not draw any limestone products in your other work for that stipulated period of time.  If they tried to enforce it beyond that they'd almost certainly lose - but if it came to that it could cost you fortune to defend.

If I were you I'd modify a draft of this agreement to make it far more specific - i.e. limited to not duplicating their designs and not working with their clients on any other limestone-related projects.

Yes, in theory it could affect your current day job - but probably only if a current client of the limestone company decides to do business with that firm.

May 18, 17 8:30 pm

Non-competes are the devil. If you keep someone at their job by fear alone they will only do enough not to get fired. Don't sign and find a different second job. That non-compete period is ridiculous.

May 18, 17 11:57 pm

That contract needs a few red lines before signing.

May 19, 17 12:03 am
bowling_ball

It's a moonlighting gig. Don't sign that nonsense, that's absolutely crazy. And way too vague.

May 19, 17 1:08 am
RickB-Astoria

I concur. It would cost you too much to legally fight it because it's something you wouldn't be financially gaining or compensated for. The way that's worded, it would seem to me that you wouldn't be allowed to keep your current employment. You would have to pick between the two and I somehow doubt you would be getting that much money to be hosed by such a 5 year block from taking any job in architecture for 5 years if you were to stop working for the firm. You wouldn't be able to go out and start your own firm or work for another firm for 5 years after no longer being employed. That's a lot of money. If this is a short time gig (like a year), I'd be expecting $300K a year. I seriously doubt that. Simply put, I doubt you are getting paid well enough for that kind of b.s.

natematt

I wouldn't sign it either Rick, but it's not THAT serious. As a matter of fact I dont' think it's even as serious as Kjdt called it out.

RickB-Astoria

It can be if not possibly worse. A typical draftsman isn't paid a whole lot per hour so you go from a pay that maybe comparable to an entry level AXP 'intern' to a minimum wage burger flipping job isn't going to go far financially fighting the terms of the contract in court. Imagine, what if you got canned after 6 months? You got 4-yrs & 6 months at the least where you might not be allowed to work for any other employer in the field of architecture anywhere in the U.S. if not the world. The ambiguity can be deeply troublesome. It's not something that I believe is worth it for the OP to get entangled in.

natematt

I don't know why but Archinect just ignored my edit to that comment.

natematt

I agree it's not worth dealing with. However, it's only applicable to working with this company's clients in a similar capacity to this company, it's not going to put him out of a job for 5 years.

RickB-Astoria

Personally, I wouldn't sign an agreement with such a non-compete clause. If I were to sign a non-compete agreement, it would have to be narrower and only if I am getting both a good salary and would be a Principal not just some lowly employee that could be hired or fired on the whim. There has to be something in it for me to hold a loyalty to the firm. Non-compete clauses like this does not belong being used with ordinary employees. The only non-compete clauses that should apply is for employees to not be competing for clients by setting up shop and that should apply to Principals, Senior Associates, Associates not part-time employees or even low ranking full time employees at the technical staff level.

May 19, 17 1:47 am
natematt

I'm with bowlingball. What throws me off here is the ambiguity of "term". While I doubt this is the intent, I think it could be read to include things that only happen during the five year period after your departure.

There is nothing wrong with a non-compete clause at lower levels, it just has to be reasonable. I have one, but it's only applicable while I am at my company, and only applies to the kind of work they do. If I wanted to design a single family home I could.

It's a bit more complicated for contract workers though.
 

May 19, 17 3:07 am
senjohnblutarsky

Five years is bullshit based on how vague they are.  If they want to be that vague, tell them you'll give them six months. 

May 19, 17 7:55 am
shellarchitect

this is only slightly better than the famous jimmy johns sandwich architect non-competes.  I'm inclined to say sign it and ignore it.  Its very unlikely that they would actually go after you

It does make sense to revise the contract so that it is clear and concise for the benefit of all parties.  Perhaps reduce the time and include an area limitation

Think of it this way, legal battles are expensive, and unless they are actually going to win something substantial its just not worth it for anyone.

May 19, 17 8:44 am
won and done williams

Non-compete clauses are potentially very dangerous at all levels and no lower level employee should be made to sign a non-compete, let alone a contractor. While they may or may not be enforcible, they could pose a major (and potentially expensive) legal headache if they are acted upon.

When I left my old firm to start my new practice, one of the first things my lawyer asked was whether I had signed a non-compete or not. Fortunately my old employer considered me a lower level employee because I was not an associate at the firm, and I didn't have one, but it could have made the path to starting my own practice much more difficult if I had.

There is no way I would sign anything like this for contract work and I would have serious reservations about signing a non-compete clause even as an employee. I would discuss with your lawyer.

May 19, 17 8:49 am

If you need a lawyer it's already too late. Just say 'no thank you' and move on.

This kind of behavior is a direct reflection on the quality (in this case the lack thereof) of the firm. 

May 19, 17 9:00 am
bowling_ball

Exactly right. Contracts are good. Non-competes such as this are strong-arm tactics to protect the other party AFTER your work ends. No way. Run.

geezertect

Vague language in a contract is construed against the party that had principal responsibility for drafting it.  Further, a non-compete agreement that effectively prevents you from making a living in your trade is unenforceable in the real world.  The language you quote is so poorly worded and vague that it would be laughed out of court.  That said, don't sign anything you don't understand.  It's just a bad habit to get into.

Sounds like another pompous little dipshit business that thinks it has invented the wheel for the first time.  Stone planters and benches?  How many different ways are there, really, of putting rocks together to sit on?  Thanks for the Friday morning chuckle.  It's snowing here and I needed that.

May 19, 17 9:06 am
RickB-Astoria

While it maybe unenforceable in the real world of most courts, but legally, if you sign it, you have to comply with the agreements until the court says you don't have it. You sign a contract, you have already said "I am going to agree to comply and follow the terms of the contract." Some courts could deem the contract unenforceable while slapping you with penalties of breach of contract prior to going to the courts to get those terms nullified. You understand where I am getting at.

WITgrad

This, and thank you Rick and all others as this has helped me understand quite a bit. I am definitely afraid of the above issues and will ask them to revise the contract to be very clear and concise in its limitation to limestone work, especially with that 5 year post employment block. I'll be running this by an attorney friend to see their take.

bowling_ball

I honestly don't get it. What if, in the course of your day-job, you are asked to do similar work? Not that this other company would have any way of finding out, but is that their intent? Not allowing you to work in a material - any material - is ridiculous. That's like saying that because you used a computer for this moonlighting gig, you can't use a computer at your day job.

Block this user


Are you sure you want to block this user and hide all related comments throughout the site?

  • ×Search in: