Boston Herald

Job seeker should reveal noncompete agreement

- By CARRIE MASON-DRAFFEN NEWSDAY

I signed a 48-month noncompete agreement when I was hired. It clearly states that it applies to any company that directly competes with my existing employer.

I am now looking for another job in an unrelated industry. Do I need to tell my prospectiv­e employer about my noncompete agreement?

It would make sense to mention it, even though you aren’t obligated to do so, said an attorney who has represente­d employees for more than 35 years and regularly deals with noncompete issues.

There are several reasons to call it to a prospectiv­e employer’s attention, said Alan Sklover, of Sklover & Co. in Manhattan.

The first is: “While it sure seems a simple matter that two companies in different industries should not be competitor­s, there are, in fact, some circumstan­ces in which lawyers could argue that they may be competitiv­e,” Sklover said.

He offered these two examples: “While a bowling alley and a movie theater are in different industries, they might be viewed to both offer entertainm­ent services and compete for the same customers on Saturday night. And certain medical profession­als may offer stress-reduction techniques; so, too — it might be argued — do yoga studios. Different industries, but the same or similar services, and potentiall­y the same or similar customers.”

The second reason he offered is that “frankly, it is not for your reader to make the judgment of what is competitiv­e and what is not. Rather it is for the prospectiv­e employer to do so, and more accurately, the prospectiv­e employer’s lawyer,” Sklover said.

Third and finally, Sklover explained that most people do not understand that noncompete agreements are most often not enforced in court, but rather by a “simple cease-anddesist” letter sent by the former employer’s lawyer to the future employer, insisting that it terminate the new employee.

“Like everyone else, employers do not like getting sued, or even threatened with a lawsuit,” Sklover said. “They are much more likely to dismiss an employee who brought this upon them, if the employee had earlier said, ‘I did not sign a noncompete,’ when, in fact, the employee had done so.”

If the reader’s new employer receives such a cease-and-desist letter and it wasn’t brought to the company’s attention before, the new employer may feel it “was tricked,” he said. If, on the other hand, the noncompete agreement was disclosed during the interview, the employer would not feel deceived.

“I have seen employees in these circumstan­ces fired by the new employer for not disclosing a noncompete,” he said. “If a prospectiv­e employee has nothing to hide and nothing to lose, then the prospectiv­e employee has nothing to fear. Complete openness, full disclosure and unquestion­able integrity are all conducive to building strong employment relations, especially in this context, and in the early stages of the relation.”

Note: Several people responded to a recent column about older job seekers and their difficulty in finding a job. Here are two examples:

• “I am coming up on 60 and was not getting offers. So I took a bunch of civilservi­ce tests. I did quite well, which helped my selfesteem. Not long afterward I began to get offers. I now have a job at a local medical center.”

• “I am 54 and have been out of work for two years. I started my own business because I could not find a job. I make only a fraction of what I used to make — less than 10 percent. I know people in similar situations.”

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