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Posted: 3/14/2019 7:47:23 AM EDT
I am curious about the enforceability of a non compete clause in a contract that I have signed. I am a professional photographer and signed a contract that states

Non-Solicitation.  Contractor agrees that, during the two (2)-year period after the termination of Contractor’s work for Company, Contractor shall not solicit or attempt to solicit, directly or by assisting others, any “Protected Parties” for the purpose of providing or performing any “Protected Activities.”  As used in this Section 10, “Protected Parties” shall mean customers and clients of the Company—including but not limited to, realtors, real estate brokers, real estate agents, developers, builders, contractors, homeowners associations, communities, decorators, and stagers—with whom Contractor had material contact during the two (2) years before the termination of Contractor’s work for Company.  As used in this Section 10, “Protected Activities” shall mean working as a real estate photographer by taking pictures for hire of real estate, including but not limited to land, buildings, houses, structures, neighborhoods, and communities.

(b)Non-Competition.  Contractor agrees that, during the two (2)-year period after the termination of Contractor’s work for Company, Contractor shall not compete against Company in the “Protected Area” by providing or performing any “Protected Activities.”  As used in this Section 10, the “Protected Area” shall mean the area where Contractor worked for Company at the time Contractor stopped working for Company.

Just curious if there is a legal way out of this for me?
Link Posted: 3/14/2019 8:58:18 AM EDT
[#1]
Move to Texas.
Link Posted: 3/14/2019 9:31:59 AM EDT
[#2]
Depends  upon the laws in your state.
Two years may be excessive.  Some states only allow one year non-compete.
Is the excluded area just local or larger?
Some employers will include excessive conditions knowing they are not enforceable; but anticipating the employee will comply.
If you are serious about it, a local lawyer knowledgeable in employment law is your next step.  A consultation is cheaper than defending yourself from a non-compete suit from your former employer....
Link Posted: 3/14/2019 9:35:02 AM EDT
[#3]
thanks for the suggestion
Link Posted: 3/14/2019 12:55:52 PM EDT
[#4]
Non-competes are highly state specific.  You need to consult with an employment lawyer in your state.  Don't listen to the idiots posting in the GD thread.

Even if a non-compete is unenforceable in your state, you'll generally still be out tens of thousands to defend against an employer who attempts to enforce one.

I generally try to include a garden leave provision (ER pays you, you don't work, you can't work for a competitor for X months/years) for my clients.  For executives, I often have success.  For rank and file and mid-level management, the agreements are generally take it or leave it.

You can find an EE side employment lawyer here: http://exchange.nela.org/nelaga/publicdirectory
Link Posted: 3/14/2019 2:56:48 PM EDT
[#5]
Discussion ForumsJump to Quoted PostQuote History
Quoted:
Non-competes are highly state specific.  You need to consult with an employment lawyer in your state.  Don't listen to the idiots posting in the GD thread.

Even if a non-compete is unenforceable in your state, you'll generally still be out tens of thousands to defend against an employer who attempts to enforce one.

I generally try to include a garden leave provision (ER pays you, you don't work, you can't work for a competitor for X months/years) for my clients.  For executives, I often have success.  For rank and file and mid-level management, the agreements are generally take it or leave it.

You can find an EE side employment lawyer here: http://exchange.nela.org/nelaga/publicdirectory
View Quote
This.

Never listen to someone who tells you non-competes are unenforceable if you are the one who is being asked to sign it. Defense costs always apply and depending on the state and the reasonableness of the scope and duration, they are often enforceable.

One thing to add. If you take a job somewhere that might be considered covered, I suggest you don't try to hide that you have this agreement with your former employer, even if you are going to fight its applicability. A non-compete that was not disclosed will often get the employee terminated as soon as the new employer learns of the problem. They don't want your problems to become their problems. If disclosed in advance with a reasonable legal expectation that it won't be enforceable, some employers will hire you as long as they won't be seen as causing you to breach an agreement.

Lawyer up locally with someone who has good experience in this subject.
Link Posted: 3/16/2019 12:58:40 AM EDT
[#6]
Did you work for this company as an employee, or as a contractor where you sent invoices to the company?

If the latter, why would you sign that?  One of the primary reasons for being a contractor is so you can farm out your skillset to multiple clients.

DH works as a photographer and he has multiple realtors from different agencies as clients.  None have ever asked him to sign an NDA and he would stop working for them if they did.  He does the work under our LLC, they get invoiced, we get either a check or run a CC and we turn over the pictures.  It's a business to business transaction not an employer/employee transaction.
Link Posted: 3/16/2019 10:05:47 AM EDT
[#7]
Discussion ForumsJump to Quoted PostQuote History
Quoted:
Did you work for this company as an employee, or as a contractor where you sent invoices to the company?

If the latter, why would you sign that?  One of the primary reasons for being a contractor is so you can farm out your skillset to multiple clients.

DH works as a photographer and he has multiple realtors from different agencies as clients.  None have ever asked him to sign an NDA and he would stop working for them if they did.  He does the work under our LLC, they get invoiced, we get either a check or run a CC and we turn over the pictures.  It's a business to business transaction not an employer/employee transaction.
View Quote
You won't find many contractors subject to non-competes as that would undermind the notion that they are a contractor and not an employee. Employee misclassification is expensive.
Link Posted: 4/4/2019 9:27:37 PM EDT
[#8]
The no solicitation might be enforceable, but the Protected Area is generally viewed unfavorably by the courts.
Link Posted: 4/4/2019 10:34:40 PM EDT
[#9]
Discussion ForumsJump to Quoted PostQuote History
Quoted:
The no solicitation might be enforceable, but the Protected Area is generally viewed unfavorably by the courts.
View Quote
Which isn't to say that the noncompete isn't perfectly enforceable.  It's a fact specific analysis, and we don't have enough info here to tell OP anything other than, "yes, it might be enforceable, you need to talk to counsel in your state."

BTW, noncompete agreements are also enforceable in VA.
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