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!
shellarchitect
May 18, 17 7:19 pm
Think it's saying you can't steal clients
kjdt
May 18, 17 8:30 pm
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.
Josh Mings
May 18, 17 11:57 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.
S W
May 19, 17 12:03 am
That contract needs a few red lines before signing.
bowling_ball
May 19, 17 1:08 am
It's a moonlighting gig. Don't sign that nonsense, that's absolutely crazy. And way too vague.
natematt
May 19, 17 3:10 am
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.
natematt
May 19, 17 1:07 pm
I don't know why but Archinect just ignored my edit to that comment.
natematt
May 19, 17 1:10 pm
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.
natematt
May 19, 17 3:07 am
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.
senjohnblutarsky
May 19, 17 7:55 am
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.
shellarchitect
May 19, 17 8:44 am
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.
won and done williams
May 19, 17 8:49 am
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.
Miles Jaffe
May 19, 17 9:00 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.
bowling_ball
May 19, 17 1:20 pm
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
May 19, 17 9:06 am
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.
WITgrad
May 19, 17 1:15 pm
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
May 19, 17 1:22 pm
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.
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!
Think it's saying you can't steal clients
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.
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.
That contract needs a few red lines before signing.
It's a moonlighting gig. Don't sign that nonsense, that's absolutely crazy. And way too vague.
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.
I don't know why but Archinect just ignored my edit to that comment.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.