To “Always Curious” – depends on the NCA. If it was tailored for development only then arguably ok to move to finance, but if it was a straight “no competitors” then not so ok.

To “LawyerGal” Your statement that NO court has ever upheld a non-compete longer than one year is not accurate. One good example would be Philips Electronics North America Corp. v. Hope, 631 F. Supp. 2d 705 (M.D.N.C. 2009), in which the court not only upheld a two year restricted period, but it also extended the term by another 11 months due to a tolling provision in the NCA, whereby the period of restriction was tolled (extended) to match the period of time when the employee was working for a competitor in violation of the agreement. More recently, a court upheld an 18-month restriction period, which it enforced from the date of summary judgment, not from the date employment ended. The court in TEKsystems, Inc. v. Bolton, 2010 U.S. Dist. LEXIS 9651 (D. Md. Feb. 4, 2010) permitted an “equitable extension” of the restricted period, even though the NCA lacked such a provision. I used these two examples to demonstrate that restricted periods in NCAs of more than a year are upheld, and that extensions beyond the already more than one-year terms are also granted. Please understand that I make these comments not to put down LawyerGal but out of concern for all the readers of these comments.

Again, thanks to all for reading. LawyerGal, feel free to contact me at my office if you wish to discuss.

What about right to work states? Where do those fall in all of this? Several states were mentioned; but, the term “right to work” wasn’t applied. For sales reps – most can’t afford to take a year off – although as bad a year as it was for many, we might make more on unemployment.

The definition of territory is another issue. If you’ve covered the entire US in a special role or your home state in which you live in another role; how, can the “mason-dixon” line be drawn? It certainly is vague in most NCD’s that I’ve seen. The Epic references above where competitors are spelled out is a new one for me.

To play devil’s advocate – why is it wrong to solicit clients, some of whom you’ve established relationships built on trust over years? If you’ve left a company because you don’t believe their product or standards are good – are we not doing our clients a disservice by not continuing a relationship of trust with them? I think there is no clear answer on that because there are some sales reps that would sell their mother swamp land just to make quota; but, there are many who are ethical and really want their clients to have the best of what the industry can offer. In this industry – we are going to interact with some of the same clients in various ways whether intentionally or not at some point in time.

I am going to go out on the ledge and “assume” that some HIT corporations don’t pursue these small sales reps deals in many cases because there may be inhouse dirty laundry that the injured employee could reveal to the public (that has nothing to do with trade secrets) that it’s worth much more to ignore the sales rep or other employee than to have corporate dirty laundry aired…assuming there is some. While that may seem like playing dirty, by fighting back – how can you feed your family, if you’re not allowed to work in an industry that you’ve spent 10-20 years in?

Each state treatst these differently. For example, McKesson lost a huge legal battle in California on a non-compete. California treated their non-competes as threatening. Meaning, McKesson got in trouble for asking people to sign them.

Another point is NO court has ever upheld a non-compete longer than one year. So if your non-compete says two years, just laugh.