Closely examine noncompete restrictionsA former employee recently sued MedMar Inc. and its related companies. The suit, Greenswag v MedMar Inc., pending in the Cook County Circuit Court, alleges the defendants made misrepresentations about the employment opportunity to induce him to sign a non-compete restriction.

I haven’t reviewed the complaint, but these sorts of claims are often unsuccessful. This is because employment agreements will contain (and if yours does not, you need to update it) an “integration” or “merger” clause. These clauses are intended to nullify all prior agreements and representations not included in the final agreement. There may be exceptions or arguments to avoid an integration/merger clause, but they are just that – exceptions to the general rule.

Consider Non-compete Issues Before Joining a New Employer 

However, this suit is more important as a reminder for individuals who may be considering a change in employment. In this regard, consider these points:

  1. It is not uncommon for a new position to be oversold – especially by recruiters financially motivated to fill positions. But when this sales pitch is made, remember none of the promises, representations, etc. will likely mean anything if they are not included in the final employment agreement.
  2. Ask early in the recruiting process if a non-compete or other post-employment restriction is required. If so, get a copy as soon as possible. You will want to scrutinize the non-compete restrictions to fully understand your obligations. Often, we review post-employment restrictions that are too overly broad to the point it is a “deal-breaker” for our clients. Sometimes these issues can be negotiated. Other times, it comes down to deciding if the risks of being sidelined by a non-compete restriction are outweighed by the benefits of the job.
  3. Evaluate the new employer’s litigation history when it comes to non-compete enforcement. For our non-compete clients, we conduct a comprehensive litigation review of the prospective employer. This often provides insight into a company’s non-compete enforcment history and litigation tactics. There are some companies that will aggressively enforce a non-compete restrictions across the board. Other companies will look for compromises. Either way, it is just good to know what to expect.

For more information about non-compete restrictions or to have your non-compete agreement reviewed, contact attorney Jason Shinn. Since 2001, Jason has represented companies and individuals in all aspects of non-compete law, e.g., drafting, negotiating and litigating non-compete disputes, and drafting or responding to cease and desist demands.