DEAR CARRIE: I have a question about a noncompete agreement for one industry and how it might apply to a noncompeting industry.
I signed a 48-month noncompete agreement when I was hired. It clearly states that it applies to any company that directly competes with my existing employer.
I am now looking for another job in an unrelated industry. Do I need to tell my prospective employer about my noncompete agreement? -- How Binding?
DEAR HOW: It would make sense to mention it, even though you aren't obligated to do so, said an attorney who has represented employees for more than 35 years and regularly deals with noncompete issues.
There are several reasons to call it to a prospective employer's attention, said Alan Sklover of Sklover & Co. in Manhattan.
The first is: "While it sure seems a simple matter that two companies in different industries should not be competitors, there are, in fact, some circumstances in which lawyers could argue that they may be competitive," Sklover said.
He offered these two examples: "While a bowling alley and a movie theater are in different industries, they might be viewed to both offer entertainment services and compete for the same customers on Saturday night. And certain medical professionals may offer stress-reduction techniques; so, too -- it might be argued -- do yoga studios. Different industries, but the same or similar services, and potentially the same or similar customers."
The second reason he offered is that “frankly, it is not for your reader to make the judgment of what is competitive and what is not. Rather it is for the prospective employer to do so, and more accurately, the prospective employer’s lawyer,” Sklover said.
Third and finally, Sklover explained that most people do not understand that noncompete agreements are most often not enforced in court, but rather by a "simple cease-and-desist” letter sent by the former employer’s lawyer to the future employer, insisting that it terminate the new employee.
"Like everyone else, employers do not like getting sued, or even threatened with a lawsuit," Sklover said. "They are much more likely to dismiss an employee who brought this upon them, if the employee had earlier said 'I did not sign a noncompete,' when, in fact, the employee had done so."
If the reader's new employer receives such a cease-and-desist letter and it wasn't brought to the company's attention before, the new employer may feel it "was tricked," he said. If, on the other hand, the noncompete agreement was disclosed during the interview, the employer would not feel deceived.
“I have seen employees in these circumstances fired by the new employer, for not disclosing a noncompete," he said. “If a prospective employee has nothing to hide and nothing to lose, then the prospective employee has nothing to fear. Complete openness, full disclosure and unquestionable integrity are all conducive to building strong employment relations, especially in this context, and in the early stages of the relation."
DEAR READERS: Several people responded to last week's column about older job seekers and their difficulty in finding a job. Here are two examples:
DEAR CARRIE: I am coming up on 60 and was not getting offers. So I took a bunch of civil-service tests. I did quite well, which helped my self-esteem. Not long afterward I began to get offers. I now have a job at a local medical center.
DEAR CARRIE: Great article, but it only scratches the surface. I am 54 and have been out of work for two years. I started my own business because I could not find a job. I make only a fraction of what I used to make -- less than 10 percent. I know people in similar situations.
Go to bit.ly/noncompeteLI for more on noncompete agreements.