Legal background

It is not unusual for employment contracts to have a noncompete clause. A noncompete clause is a restrictive clause designed to protect employers from having employees take business away when they leave. It can restrict by miles (ie, a 50-mile radius from where the person worked), or by geographic location (ie, it can prevent a former employee from working in the same county or even city). Noncompete clauses also specify how long the restriction will be in force (ie, 18 months). The less restrictive a noncompete clause is, the more likely it will stand up in court. Courts will sometimes strike down clauses that are overly restrictive, using a “reasonableness” requirement. Extremely long noncompete clauses (lasting for years) or with very large geographic areas (which may require the clinician to have to relocate) may be viewed as unreasonably restrictive, as in this case. A noncompete clause is most likely to be enforced if it is limited in time and the geographic scope is specific or narrow (ie, a 10-mile radius from the place of former employment). 

Protecting yourself

Let’s be clear. A noncompete clause is not for your benefit. It is for the benefit of your employer. So, it is best to avoid one in the first place, if possible. If you are offered a job that requires you to sign an employment contract, read the contract completely. Do not skim, do not skip small print, and do not make assumptions about ‘boilerplate material.’ You will have to live by the terms of this contract, so make sure you understand it. Better yet, have an attorney read it and give you an opinion on the noncompete clause. While you may not be able to get a potential employer to leave it out completely, you may be able to negotiate the terms of the clause. For example, if your employer is proposing a 50-mile radius clause, you might suggest a 10-mile clause instead. If they are suggesting a three-year term for the clause, you might suggest a one-year term, instead. 

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When a court is confronted with a violation of a noncompete clause, it must weigh the interests of the employer with public policy concerns (such as whether the clause interferes with the nurse–patient relationship), as well as reasonableness of the clause itself. Making sure that the clause is very narrow in scope about what it restricts is the best way to protect yourself. Consider asking for a ‘honeymoon period’ of 3 to 6 months of employment before the clause kicks in. This will protect you if the job does not work out early on and you want to move on without restrictions. But always keep in mind that if you sign a contract, you are legally required to abide by the terms, so be sure that you completely understand what you are signing.

Ms Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.