Non-Compete Agreement, Is there a way out?

[rohhit.b.sawant]

I have been working for an IT consulting company in Chester, PA for a year now on h1b. I signed a non compete agreement with them, which states that I cannot join any competitor or a client for the next 2 years.

While I was working for a fortune 500 retail client in Chicago, they expressed interest in me and decided to offer me a permanent position with a lot of perks. Because I knew there was a non comepte agreement, I did not sign anything and inturn asked my current employer to look into it. Very little I knew that, they asked me to resign in a few days and started negotiating with the client. The reason I was asked to quit was because I had breached their non solicitation agreement where I cannot engage in any employment conversation with my clients (which I was not aware of).

After a month of negotiation, my company decided it was not going their way and notified me that were about to cancel my visa (h1b).

I was notified about the visa cancellation around 7-9th Jan 2012. At this point I dont know what are my options. How many days can I legally stay in the US? Is there a way to comeout of the non comepete agreement? Can I join a prospective competitor in another state and go away with the non compete clause? Does the non compete clause in Chester, PA valid if I join a client in Chicago Illinois?

I would appreciate a quick response. Thanks

[JoeF]

In most states, such agreements are valid (California is the only exception I know about.)

[MayEB2I]

I guess you can quickly get in touch with another consultancy company.

If you or the new consultancy can find you a project and get a client letter, you can apply for H1 transfer. As soon as you get the acknowledgement receipt, you are good to work for the new project. Even if you are not able to get the best project or cannot get the best documentation you wont be out of status. Worst case you might get RFE but that can always be answered. Most importantly you need to make sure you are never out of status. Out of status issues are usually very difficult to deal with every time you get in touch with USCIS.

[JoeF]

I guess you can quickly get in touch with another consultancy company.

That would be a competitor, which the non-compete also doesn't allow...

[MayEB2I]

That would be a competitor, which the non-compete also doesn't allow...

I dont think joining a new employer plus a new client will be a problem with a non-compete agreement.

As far as I know Non-compete agreement would mean you cannot work for the client or thru a different employer for the same client. Once you change the client, you should be ok, Maybe experts can comment on this....

[JoeF]

I dont think joining a new employer plus a new client will be a problem with a non-compete agreement.

As far as I know Non-compete agreement would mean you cannot work for the client or thru a different employer for the same client. Once you change the client, you should be ok, Maybe experts can comment on this....

That depends on the wording of the non-compete. The OP said "I signed a non compete agreement with them, which states that I cannot join any competitor or a client for the next 2 years." (emphasis mine.)

The issue is of course if such agreements are fair. If he can't join a competitor or client for 2 years, that essentially means he may not be able to work anywhere. Courts have ruled that then the company must provide decent financial compensation in case he leaves.

So, the OP should seek the advise of a labor lawyer to see if this is a valid agreement.

[mike999]

I dont think joining a new employer plus a new client will be a problem with a non-compete agreement.

As far as I know Non-compete agreement would mean you cannot work for the client or thru a different employer for the same client. Once you change the client, you should be ok, Maybe experts can comment on this....

I agree.

[H1ORL1]

I am not expert, however logically speaking other consulting company can become competitor only when both companies stand in front of each other for getting same work.. if the work you are going to do (means your future project) is nowhere in reach of your existing company (means if they do not have any relation with your new client) then it will be hard for them to prove that new company you are joining is their competitor .

Please check with lawyer of your new company ..

[JoeF]

I am not expert, however logically speaking other consulting company can become competitor only when both companies stand in front of each other for getting same work..

They could compete for the same contract, even if one doesn't get it. And that could have been in the past or in the future. Or they may apply for for contractrs in the same industry, but different clients this time. Two companies operating in the same space are competitors. Microsoft and Redhat are competitors, both offer operating systems, even though they are incompatible to each other, and even though Microsoft also offers business appplication software like Office.

The OP would have to get the contract evaluated by a good labor lawyer. This is nothing that can be resolved in a forum.

[jjeyaram]

Inputs required..Below is the details of my case.

I am working with Employer1 as an Employee (New Jersey company ) for client in California through vendor1.
I got an offer with my client as a full time employee. Now I have question regarding Non-competition which I had signed with my employer.
Will they create any problems with Non-competition agreement in future if i join with my client.

Please give me some input to proceed.I would appreciate a quick response. Thanks

[JoeF]

In California, the CA Supreme Court has ruled that non-compete agreements are not valid in CA.

See https://en.wikipedia.org/wiki/Non-compete_clause#California

[rahul412]

Inputs required..Below is the details of my case.

I am working with Employer1 as an Employee (New Jersey company ) for client in California through vendor1.

I got an offer with my client as a full time employee. Now I have question regarding Non-competition which I had signed with my employer.

Will they create any problems with Non-competition agreement in future if i join with my client.

Please give me some input to proceed.I would appreciate a quick response. Thanks

Yes, employer can take action. Try to negotiate with him.

[Jareehd]

Hi Everyone!

H1B resource working in IL, employer from NJ. Signed a Non-Compete amended which says can't join end client for 1 years after giving resignation.

Employer 1- Hold my Visa

Employer 2 - Introduce me to Client

Employer 3 - End client who want to hire me

NO CONTRACT BETWEEN EMPLOYER 1 and EMPLOYER 3 , EMPLOYER 1 & 2 are in contractual obligation. Can I join Employer 3.

[rahul412]

18 hours ago, Jareehd said:

Hi Everyone!

H1B resource working in IL, employer from NJ. Signed a Non-Compete amended which says can't join end client for 1 years after giving resignation.

Employer 1- Hold my Visa

Employer 2 - Introduce me to Client

Employer 3 - End client who want to hire me

NO CONTRACT BETWEEN EMPLOYER 1 and EMPLOYER 3 , EMPLOYER 1 & 2 are in contractual obligation. Can I join Employer 3.

There won't be any agreement with 1 and 3 bcos they doesn't know each other. But since 1 has clearly mentioned that you cannot join end client so you cannot join your end client. If 3 is your end client then no, you can't.

[sanilmar]

I am in a similar situation but one difference my current employer had only noted that i cannot join the client or vendor without a written approval from them. It doesnt say anything about time, money etc. They had an agreement with the vendor which says if the client wants to hire me they have to let me go for certain amount. Can i still move to the client full time or its not possible?

[KrishLaks]

Hi

My case is 

Employer 1 Holding my H1 B

Vendor - Having contract with Customer

Customer - wants to hire me and is ready to terminate the contract with Vendor

Customer has contract with Vendor, Vendor has contract with my employer. No relation ship between customer and my employer. But My employment agreement has a clause like this

Unless agreed by the company, during the period until 2 years following the termination of your employment for whatever reason, you shall not directly or indirectly solicit the business of (or otherwise deal in a manner adverse to the Company with) or provide any software development, project management, consulting or programming services to any customer or end users of any customer (on an entity-wide basis and not merely on a site or project specific basis) of the Company for which or whose benefit you provided services or were associated during your employment with the Company 

The clause says about services and not about me joining, can I argue that way with my employer in case I resign. 

[JoeF]

Joining an employer as employee is "providing services" to that employer.

Unless you are in California, the clause is most likely valid.