Before You Quit: How to Handle Your Non-Compete

If you signed a non-compete, here are some things to consider before you leave:

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. But if you lost your copy, or never got one, you have to be careful. You could ask your boss, but it will probably raise alarm bells. Better yet, you could ask a trusted co-worker, or someone in HR, for a copy.
2. Get a copy of your job description. One of the key requirements under Virginia law is that your non-compete cannot prevent you from doing anything greater than your previous job responsibilities. It’s called the Janitor Test. Were you a sales manager? Then, your non-compete cannot stop you from working as a bookkeeper, or a “janitor,” even for a competitor. So, ask HR for a copy of your job description and keep it in your file.
3. Read your non-compete contract. You probably reviewed your non-compete before you started at the company. Or, maybe you gave it a cursory examination. Whatever the circumstance, now is the time to carefully, thoroughly go over its terms. 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. The law has changed – and it is strict. A lawyer can review your contract and let you know whether a court is likely to enforce it. Before you make the move, it is worth getting legal advice (that’s why you’re here, right?).
5. Tell no one, especially clients, that you are leaving. This is reason #1a why employees get sued. Do not tell any clients that you plan to leave. You have a fiduciary duty to your employer to protect their business. Wait until you leave. If you do not have a non-compete, or your non-compete is not enforceable, then you can start contacting clients after you leave.
6. Take nothing with you. This is reason #1b why employees get sued. It is too easy in the Digital Age to inadvertently keep your employer’s confidential information. Make sure you return your computer, smartphone, and anything else that belongs to your employer. Do not email anything to yourself, or keep any documents. Basically, “leave naked,” with nothing but the knowledge in your head before moving to your next job.

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 careful preparation.