Before You Quit: How to Handle Your Non-Compete

If you signed a non-compete with your employer, here are some things to consider before you separate from employment:

  1. Get a copy of your non-compete contract. Make sure you have a copy of your contract. Hopefully, you kept a copy when you signed it. If you lost or never received your copy, you can ask someone in HR, your boss, or a trusted co-worker for a copy.
  2. Get a copy of your job description. One of the key requirements under Virginia law is that your former employer cannot prohibit you from working for a competitor in a position that requires a different set of job duties than those you performed for the former employer.  This concept is known as the “Janitor Rule.”  For example, if you were a sales manager, your non-compete is unreasonable if it prohibits you from working as a bookkeeper or as a janitor for a competitor. Ask HR for a copy of your job description and keep it for your records.
  3. Read your non-compete contract. You probably reviewed your non-compete when you received it. When determining your options before leaving the company, thoroughly review any non-compete restrictions. Do not wait until after you have left the company to understand the terms.
  4. Ask a lawyer to review your non-compete contract. Not every contract is enforceable. A lawyer can review your contract and let you know whether a court is likely to enforce it. Before you make a move, it is worth getting legal advice.
  5. Tell no one, especially clients, that you are leaving. A typical reason employers decide to sue former employees relates to solicitation of the employer’s clients and customers. Do not tell any clients that you plan to leave. You have a fiduciary duty to your employer to protect their business. If you do not have a non-compete, or your non-compete is unenforceable, you may be able to start contacting clients after you leave.
  6. Take nothing with you. Another typical reason employers decide to sue former employees relates to the employer’s documents and information. Employees often inadvertently keep an employer’s confidential information. Make sure you return your computer, phone, and any other property belonging to your employer. Do not email documents and information to yourself or keep any hard copy documents on your way out the door.

There are lots of other things to consider if you have a non-compete before you take a new job. Should you give notice? Should you let your co-workers know in advance? What about telling your new employer about your non-compete?

All these questions depend on your specific situation. The bottom line is that job transitions can be exciting, fulfilling opportunities with the right amount of preparation.