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This again (non-compete)
  
 
swoop
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p.1 #1 · This again (non-compete)


So I think I made a thread here like two years ago about a company wanting me to sign a non-compete agreement to give photography tours. Basically I walk around the city and teach tourists how to photograph landmarks. It bothered me for awhile but in the end I signed it because the wording of the non-compete limited me strictly to not being a tour guide and made no mention of photography or workshop instruction. No problem, so I can't be a tour a guide. Doesn't really bother me. It didn't limit me from teaching workshops which is the field I was most interested in exploring.

So like two months after that I got started with a fledgling outfit that offers photography workshops. I teach about 2-3 workshops a month on various topics, mostly simple stuff like exposure and composition. Well, more than a year later, they now want me to sign a non-compete saying I can't teach workshops. The thing is I already do teach workshops for more than just this one "company." In addition to teaching workshops for another company I also teach private workshops.

Keep in mind this isn't steady work, it's freelance, and there's not a lot of money here but it's not a little either. It's a car payment for the month. Either way I'd be out more money if I signed it than if I didn't, not to mention any future opportunities. Not only do I have a great deal of experience in photography, but a fairly substantial resume as well in addition to an actual degree and in my opinion workshops are the only field of photography where a degree actually has any value.

Anyway, I'm trying to find a way to respond that explains there's no way I'm signing a non-compete without sounding like I'm saying "screw you."



Jul 28, 2013 at 02:39 AM
Micky Bill
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p.1 #2 · This again (non-compete)


Don;t take it personally.
Tell them that you are very sorry but your attorney advised against signing such a clause, or that you are very sorry but since you already are doing workshops unless they want you to become a full time employee it is impossible to sign such an agreement.
If they are determined to get you to sign something you might offer to sign a NDA but to sign a non-compete would be financially stupid, and rarely enforceable.
It's funny how a company hires a freelance worker they think they can tell him how to spend the rest of his time.



Jul 28, 2013 at 02:57 AM
gkas
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p.1 #3 · This again (non-compete)


From what I understand, non-compete contracts are almost totally unenforceable. An employer cannot stop you from future earnings.



Jul 28, 2013 at 04:07 AM
swoop
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p.1 #4 · This again (non-compete)


The wording of the contract. Keep in mind I'm not actually a contractor for them. I've never signed anything. And I actually have been a contractor for another company which guaranteed work and pay, which in my mind is the difference between a contractor and freelance. Contractor = guaranteed work and pay for X amount of time, freelance = on call/as needed. They're definitely misusing the word contractor.

Under the term of contracting for XYZWORKSHOPS and for a period of 24 month after the written termination of contracting work for XYZWORKSHOPS, Contractor will not directly or indirectly engage in any business that competes with XYZWORKSHOPS. This covenant shall apply to the geographical area that includes the area within an 8 mile radius of Manhattan. Under the term of contracting for XYZWORKSHOPS and for a period of 24 months after written termination of contracting work for XYZWORKSHOPS, Contractor will not directly or indirectly solicit business from, or attempt to sell, license or provide the same or similar products or services...Show more

My planed response. What do you think?

I'm sorry but I can't sign a non-compete. I do instruct other workshops and for a freelance position signing a non-compete would be financially unwise.

I'd be glad to sign a Non-Disclosure Agreement if you're concerned about the operations of your business.

Thanks and let me know how you'd like to proceed.



Jul 28, 2013 at 04:25 AM
Micky Bill
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p.1 #5 · This again (non-compete)


I think your response is fine, they might not go for it but they sound like jackasses anyway...IANAL but I would change "I do instruct" to something like for the past x (months / years) I have been instructing other workshops. To show that you already are doing workshops and there is no reason to give that up to work for them


Jul 28, 2013 at 07:05 AM
swoop
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p.1 #6 · This again (non-compete)


So I sent my response and here is what I received.

We had the same question come up with "Jane Doe" because she teaches at SVA. As long as you are not soliciting our members for your own business and as long as you are not starting up an institution in the manner that we have, you are fine.

Let me know if you have any other questions.


Now my concern is if it's no big deal and we have this understanding, why should I have to sign the non-compete at all. And if I did, why can't they re-word it to specifically mention they don't mind me teaching elsewhere. I just really don't want to be in someone's mercy if their mood changes because of the wording in a contract. And if I do teach for another institution I don't want this biting me in the butt if I need to provide a reference.



Jul 28, 2013 at 06:09 PM
Micky Bill
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p.1 #7 · This again (non-compete)


What happens if one of their members approaches you? You can turn them away but how do you know if they are a customer of them if they don't tell you.
In reality they are relying on the heavy hammer and or ugly lawyer letter to enforce their contract. Not sure it is all that worthwhile to enforce unless you try to take over their entire business but hey that that's the free market.
Throw out the original contract and re-write one that explains your new agreement.
Was there any explanation of what would happen to you if you did violate the agreement?



Jul 28, 2013 at 06:47 PM
Dudewithoutape
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p.1 #8 · This again (non-compete)


swoop wrote:
So I sent my response and here is what I received.

Now my concern is if it's no big deal and we have this understanding, why should I have to sign the non-compete at all. And if I did, why can't they re-word it to specifically mention they don't mind me teaching elsewhere. I just really don't want to be in someone's mercy if their mood changes because of the wording in a contract. And if I do teach for another institution I don't want this biting me in the butt if I need to provide a reference.


Why don't you add that clause or ask them to add that or sign a new "non-compete" that only has what they quote?



Jul 28, 2013 at 06:47 PM
FLSTCSAM
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p.1 #9 · This again (non-compete)


swoop wrote:
So I sent my response and here is what I received.

Now my concern is if it's no big deal and we have this understanding, why should I have to sign the non-compete at all. And if I did, why can't they re-word it to specifically mention they don't mind me teaching elsewhere. I just really don't want to be in someone's mercy if their mood changes because of the wording in a contract. And if I do teach for another institution I don't want this biting me in the butt if I need to provide a reference.


My first quick thought is: Hey if they are willing to put that in the contract, sign it. That sentence pretty much makes the initial overly restrictive lawyer stuff null and void.

That said do a little more research to make sure.

Good luck.

Sam



Jul 28, 2013 at 07:51 PM
TT1000
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p.1 #10 · This again (non-compete)


gkas wrote:
From what I understand, non-compete contracts are almost totally unenforceable. An employer cannot stop you from future earnings.


Try this for some background (I didn't read it but it's from a respected Philly firm):

http://tinyurl.com/76clbuy



Jul 29, 2013 at 03:31 AM
 

Search in Used Dept. 



lukeb
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p.1 #11 · This again (non-compete)


gkas wrote:
From what I understand, non-compete contracts are almost totally unenforceable. An employer cannot stop you from future earnings.


Reasonable Non-Competes are 100% enforceable. But they must be reasonable.



Jul 29, 2013 at 03:46 AM
TT1000
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p.1 #12 · This again (non-compete)


lukeb wrote:
Reasonable Non-Competes are 100% enforceable. But they must be reasonable.


True enough in NY.

But you would need to check every jurisdiction that the person may be interested in working during the purported term of the NC. For example, CA will not enforce a NC against an employee, reasonable or otherwise.



Jul 29, 2013 at 03:52 AM
lukeb
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p.1 #13 · This again (non-compete)


TT1000 wrote:
True enough in NY.

But you would need to check every jurisdiction that the person may be interested in working during the purported term of the NC. For example, CA will not enforce a NC against an employee, reasonable or otherwise.

Venue is usually set out in NC and other contracts, and that determines where the contract will be enforced.



Jul 29, 2013 at 09:17 PM
Wobble
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p.1 #14 · This again (non-compete)


I owner if the company would sign a NC for them not to engage in the same business model as you...


Jul 30, 2013 at 03:32 AM
TT1000
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p.1 #15 · This again (non-compete)


I agree it is possible that the choice of law and venue provisions could work in CA to preclude the application of CA law, in certain cases.

http://tinyurl.com/mjdj8l2

http://tinyurl.com/l3ppsw2

I also think the provisions are almost always included but who knows until you see the thing.

I would be more concerned with the scope of the NC.



Jul 30, 2013 at 06:06 AM
Ronny Mills
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p.1 #16 · This again (non-compete)


If it is important to you, consult an appropriate attorney. Most of us are "Uncle Bob" lawyers.


Aug 01, 2013 at 04:22 AM
Micky Bill
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p.1 #17 · This again (non-compete)


Do you have to be an actual employee as described by whoever makes these kind of rules (employees vs, independent contractor vs. freelance vs guy picked in front of Home Depot) to even be considered eligible for a non- compete clause?
Both when I was an assistant and once in a while when I hire assistant there is a need for a non- disclosure agreement, but that's different.
What would stop a shifty company from "hiring"or "contracting" many different people , get them to sign an non compete then cease working with them...wouldn't they then have some sort of lock on their area by freezing others out? Just askin..




Aug 01, 2013 at 06:29 PM
surfnron
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p.1 #18 · This again (non-compete)


Get it in writing as you need it to be. If the situation ever wound up in court, the contract will be all that matters, AND you will probably have to spring for a lawyer yourself ~ Ron


Aug 03, 2013 at 12:30 AM
glort
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p.1 #19 · This again (non-compete)


Ronny Mills wrote:
If it is important to you, consult an appropriate attorney. Most of us are "Uncle Bob" lawyers.


BEST advise of all and that anyone here can give.

That said.... :0)

If a contract violates any state or federal laws or it is poorly written, ambiguous or other wise defective, it's worthless.
If it is any of those things, it may be beneficial to you in taking action against the employer in fact.
Thing is, You are really going to need a lawyer to tell you if it is or not.

Being a workplace agreement, there may be guides to the rules and regulations you can look online up to get an idea of your rights and the legalities of the situation before you go to a lawyer.



Aug 08, 2013 at 05:22 AM
Arka
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p.1 #20 · This again (non-compete)


gkas wrote:
From what I understand, non-compete contracts are almost totally unenforceable. An employer cannot stop you from future earnings.


As a matter of judicial policy, non-competes are difficult to enforce in CA (though not impossible). Not so true on the East Coast (NY or MA).



Aug 08, 2013 at 08:15 AM
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