Question: My position was recently eliminated and a job with lesser financial potential was offered. I turned it down. My employer offered me severance, which I plan to accept when the agreement is given to me, and I am presently unemployed.

I previously signed a non-competition / non-solicitation agreement, and will soon be getting the severance agreement.

Customers of the company have contacted me with offers of employment in different fields. They are continuing to do business with my former employer.

Even though I signed the non-competition / non-solicitation agreement, and I plan to sign the severance agreement, can I seek employment with these customers?

        Susan              
        Sayreville, New Jersey          

Answer:  Susan, the answer to your question depends entirely on the words in your two agreements. They need to be read carefully, with your question in mind.

Usually, non-competition agreements prohibit you from working for a competitor for a certain period of time. If the “customers” you refer to are not competitors, you probably have no problem here. However, if they compete somewhat with your employer, but are offering you employment in a “different field,” you may or may not have a problem. Some “non-competes” say you can’t work for a company that does ANY competition. Some say you, yourself, can’t engage in competitive activities. Again, the wording of your non-compete provision will determine if you have a problem. 

Usually, non-solicitation agreements prohibit you from soliciting business away from your former employer, or soliciting employees away from your former employer, for a certain period of time. If working for the customers will not require you to solicit business or employees away from your former employer, you’re probably fine here, too.

I’ve reviewed and negotiated severance agreements for many years. I can’t remember seeing one that would prohibit you from working for a “customer.” It would be extremely rare.

By the way, just in case you do have a problem, since companies usually want their customers to be happy, they will often permit you to work for them, rather than make a fuss, even if you’ve signed something that says you won’t do that. You might ask for a waiver. If you do ask for, and are given, permission, MAKE SURE you get that permission in writing – an email dated AFTER the severance agreement is fine.

Read your agreements over carefully. If and when you do, the chances are high you’ll have no problem.

Good luck in your job search. We would love to hear whether your severance or non-compete / non-solicit agreements do pose a problem. We have a new “Feedback Invited” box on our homepage for just such feedback.

         Best, Al Sklover

P.S.: For those wanting personal attention and counsel, Al Sklover is available for Private Telephone Consultations on the subject of Non-Competition and Related  Restrictions on your working freedom. Choose 30-, 60-, or 120-minutes. If interested, just [click here.]

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