San Francisco Employment Law Firm Blog

Switching jobs and employers when you have signed a non-compete agreement with your former or present employer may present unique challenges that require careful consideration in light of the specific circumstances of your industry, the company you are working for and the company you are planning to switch to. Even though it has been well established that generally, non-compete agreements are invalid and unenforceable in California, you must take into account a number of other factors, one of the which is trade secrets and confidentiality agreements you might be bound by.

Among other things, it might be well worth making sure that the reason the new employer wants you is not in order for you to tell them all about the proprietary information or software of your previous employer, and not in order for you to actively try to recruit the your former employer's customers to do business with your subsequent employer.

In some cases, especially when you have a close relationship with your employer, it might be worth having a candid conversation about your employment plans and trying to figure out together and collaboratively how to ensure that your former employer's interests are protected, while your rights are not violated as well.

Despite the fact that most employers, especially larger companies, know that non-compete agreements are unenforceable, they routinely continue to include them in their employment contracts and handbooks as a "deterrent" - to discourage an employee from engaging in an activity that would put the company's success and profits at risk.

Under California Business and Professions Code section 16600, any agreement entered into with the purpose of limiting trade or business of any kind is to that extent void and unenforceable. California courts have consistently declared this provision an expression of public policy to ensure that citizens shall retain the right to purpose any lawful employment and enterprise of their choice. The interest of employees in their own mobility and economic prosperity are deemed paramount to the competitive business interests of employers as our society is built on and strongly encourages competition in trade and business.

This means that despite having agreed not to compete, a former employee has the right to enter into competition with his former employer, even for the business of those who had formerly been customers of the former employer. It makes no difference that the covenant not to compete is reasonably limited in time and geographic scope.

In one case, an employment agreement provided in part: “Employee will not render services, directly or indirectly, for a period of one year after separation of employment with Employer to any person or entity in connection with any “competing product.” This agreement was held to violate Bus. & Prof. C. section 16600 and was therefore found void and unenforceable.

Parties cannot avoid the above section by including provision designating another state’s law as governing their employment agreement.

The only limitation is that the former employee’s competition must be fairly and legally conducted. Thus, disclosure of former employer’s trade secrets of other confidentially information may be regarded as unfair competition.

The only times when covenants not to compete are upheld are when the restrained imposed is narrow in scope, leaving a substantial portion of the market available to the employee. Thus, a covenant not to solicit to specific customers was one held valid because it limited access only to a “narrow segment” of the relevant market.

Non-compete agreements may be enforceable when give by anyone selling the goodwill of a business. The seller of a business and its goodwill may agree to refrain from carrying on a similar business within a specified county or counties, city or cities, or a part thereof, so long as the buyer or any person deriving title to the good will carries on a like business therein.

There are several requirements that must be satisfied in order for such an agreement to be valid:

* First, a covenant not to compete must be reasonable in scope. The covenant must be shown to be reasonable and necessary to protect the business buyer’s interest in terms of duration, activity and territory.
* Secondly, the duration of time for which the given agreement not to compete prohibits competition is also a factor in determine the reasonableness of such an agreement. In other words, the shorter the period of time for which an agreement limits competition, the more likely such an agreement to be valid and enforceable.