I was recently contacted about a potential non-compete lawsuit by an employee that had just on-boarded to a company in downtown New York, and he realized, within a matter of weeks, that he had made a big mistake. As he conveyed to me, the employer had engaged in a classic "bait and switch," where they promised the prospective employees one thing, but the actual employment picture once they got there was so starkly different than that vision as to be utterly unrecognizable.

There was just one "small" problem, however: this new employee had signed an aggressive, onerous non-compete agreement, and wasn't in a financial position to slug it out with this soon-to-be former employer.

But let's get even more granular: this new employee hadn't even finished his initial training with the company, was hired for a position well beneath his experience level, and, perhaps even more importantly, was being paid just a hair above minimum wage.

Therefore, it should come as absolutely no surprise that at that salary level, this newly minted employee wasn't being given any treasured, highly confidential or proprietary information. Far from it - it was a manual labor job.

That notwithstanding, this employer saw fit to present this low-wage employee with a take-it-or-leave-it non-compete agreement that purports to prevent him from working with any competing company for one (1) full year post-termination.

Looking at the agreement, I immediately offered to defend the employee pro bono.

Why I Offered to Defend This Employee in the Event of a Non-Compete Claim Free of Charge

Candidly, this agreement jumped out at me as the poster child for where non-compete agreements go way too far; simply put, there is no legitimate business interest that this company could possibly be protecting by forcing a low-wage employee like this gentleman to sign away his right to work in the same industry if a better opportunity presents itself, such as if he were offered another $10 per hour.

In a word, what this employer did is not just morally wrong - it is offensive

Indeed, he made clear in our conversation that he would be engaged in manual labor behind closed doors, with no direct client contact whatsoever, meaning that the lone argument this employer could possibly have for tying him to a restrictive covenant would be inapplicable here.

Additionally, given that this employee - as mentioned above - is barely making minimum wage, he does not, and would not, have the financial resources to fight a lawsuit that arises out of this agreement. Thus, his only realistic hope of moving on safely would be to engage an attorney knowledgeable about non-competes, and that would agree to do so for free - which is precisely what I offered him.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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Aaron Messing 12/14/2021 01:11 PM
Well done.
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