Employees may have a variety of reasons to change employers; whether to get into a new career, look for more financial security for family; and/or because the work environment is not optimal. When seeking a new job, it is best to be employed so it is better not to quit and then look for a replacement job if you can tolerate the wait. Your employer may decide to walk you out the door when you give your advanced notice of your planned departure date. As an employee at will the employer can do that. Also if you have a bad boss and leave before finding a new job, a potential new employer during your job search will contact that bad boss for a reference wherein the potential new employer should not contact your current employer since that will jeopardize your job.
Before looking for new employment, you should review your records to see if you signed a non-compete, non-solicitation, confidentiality, or any other post-employment restriction. It would be prudent to have an attorney review those provisions before you look for employment. Employment non-compete agreements under New Hampshire law are required to be provided prior to the employee accepting employment. Merely stating there will be a requirement of a non-compete in a job offer letter is not enough. The actual non-compete must be provided. Employment non-competes are narrowly construed to protect the legitimate business interests of the employer which includes the company’s good will. Several New Hampshire courts have determined that for sales people this really amounts to a non-solicitation as to customers for whom the employee had contact with while employed with their former employer. Having said that, if you were to seek new employment, your potential new employer would expect you to reveal any restrictions you have on employment. Further, you would want to know what your new employer is prepared to do if your former employer were to challenge your right to work with your new employer. Some executives are able to negotiate with the new employer the right to have the new employer defend against any breach of the non-compete after an analysis of the non-compete if the new employer thinks it is not enforceable or is enforceable to a level that will not impact the employee’s new job. Other employers may decide that they do not want get involved in litigation and will let you go once a threat of litigation occurs.
If the new employer requires a non-compete, the executive should look at the overall package and consider where the employee is in his career life. For example, if a 60-year-old employee looks at an exciting new opportunity and plans under any circumstance to have that be his last job, a non-compete may be worth entering into depending on the entire package and the risk benefit analysis. For those who work in Massachusetts, the Commonwealth’s non-compete laws are much more restrictive and beneficial to the employees and that should, likewise, be considered with an attorney. It is best to negotiate those post-employment restrictions up front in any employment agreement along with any severance pay provisions. Depending on the circumstances, the employee’s attorney may deal directly with the company’s attorney or behind the scenes in assisting the executive in negotiating the contract with the company representative. Those strategic decisions can be discussed with employment counsel.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].