Non Competes usually have different sections.
Non Compete
Non Disclosure
Non Solicitation

There is a non disclosure, which basically means not to share company secrets.  An example is when a scientist steals a secret formula to bring it over to a new job, from which to help the new company.  That is disclosing secret proprietary information.  There really is no secret information in the staffing industry other then pricing.  There are no secret methods, no secret resume database. We all do pretty much the same thing. The only difference is some do it better than others. So the non disclosure part of a non compete contract rarely applies to anything in the staffing industry. 

The non compete/non solicitation is really the language that we all worry about. So let me clarify that for you.

Suppose you work in the staffing industry, then switch companies to work for ABC staffing where they have you sign a non-compete. And the language says if you quit that job you cannot work for another staffing company directly, or indirectly for one year and up to 100 miles. That is not enforceable because you already had experience before coming to work for that company.

What if you did not have experience prior?  Even then, it is almost impossible for a staffing company to enforce a non-compete purely from the standpoint you left them to work for another staffing company.

When it comes to court, most of the time the non-compete is not enforced. But few people are willing to hire an Attorney to protect themselves, or they lack the understanding of non-competes and fear them more then they should be feared.

Non-competes are really designed to stop you from leaving your current company to switch jobs, and then bring your candidates and client information with you, so that you can use that to ramp up at the new company. Basically it means they spent money helping you develop business, as such you cannot take that business with you.  State law often over-rides the language of a non-compete.  A staffing company can have a non- compete written in Texas where their HQ is located,   and use that document for all branches across the USA. But the language might not be enforceable in other states.  Most of the time language that prevents you from switching companies and staying in the same industry is unenforceable.

How does enforcement of a non-compete work?  First, your ex employer must find out that you left them and are now working for a competitor.  So how do they find that out?  Usually it is because the individual talks to or emails their previous co-workers and tells them where they are now working, thinking they can trust their old friends.  And then these old friends rush right back to the manager and rat you out, so to speak. So the first lesson is to never stay in touch with people you used to work for, never send them emails, and if you do talk to them, never let them know where you went to work. Let me say that again. 99% of the time the way a previous employer finds out a recruiter or rep went to another staffing firm is because the recruiter/rep opened their mouth and told their previous co-workers where they went to. Employers do not have a crystal ball that can tell them where you went to after leaving them. And frankly, managers do not have time to worry about where you ended up.  The only way they find out is when a recruiter/rep messes up and makes it obvious which company they went to.

If you stay under the radar for 6 months, there is usually not enough time left in a non compete for a company to justify coming after you. And, usually companies will only go after you if you make them upset. And usually that means you are aggressively going after your previous customers, and making it obvious. Most companies are not going to pick a fight over non-competes if you leave professionally, and leave them alone, not causing them any harm.

Suppose your previous employer finds out, what can they do?   If all that happened is they hear you are working for another company, they can send you threatening letters. But that is about it.   For a staffing company to do anything legal, they must have proof you are violating a non-compete. They cannot just tell a Judge their opinion, they must present proof in court.  How can they prove you are going after your previous customers?  Did you send an email to a previous customer who stabbed you in the back and forwarded that message to your previous manager? Do you have customers that would do that? Forwarded emails are usually not allowed as evidence in the first place. And in court, the original computer must be brought into the court room. Which means your previous employer would have to subpeana the customer’s computer to bring into court to show the original email record, showing they received that message direct from you. They cannot print email records and use that, because printed email records are not admissible in court because they can be altered. Do you believe a staffing company is going to drag an important customer into court to support their non-compete case, and force them to bring a specific computer into the court room?  Doing so would surely anger the customer, and if the staffing firm tries to drag them into court as supporting evidence that will cause much more harm to the relationship then you can cause.  Let’s just say if you email a previous customer, and somehow that email is forwarded to your previous manager, and that causes them to start sending threatening letters about your non-compete, just remember it is one thing for them to send threatening letters, it is another for them to actually do anything about it. but you should be smart enough to not to set this wheel in motion in the first place.

I am divorced.  One day I received a letter in the mail, ordering me to court so my ex wife could argue her case that she wanted me to pay her money for certain medical bills.  Yes, I was forced to go to court. But once I got to court it became clear she did not have much of a case, and lacked evidence. So the Judge threw her case out of court and dismissed it.  Remember this when it comes to non-competes. A staffing company can pump up their chest, blow hot air and send threatening letters – even file a motion with court to require you attend a hearing.  But that does not mean they have a case, and unless they have very strong evidence against you, the odds are not in their favor. You just need to have the backbone to defend yourself.

Let’s put it this way, it is very hard for your previous employer to come up with actual evidence to prove you are violating a non compete.  It is not likely a customer whom you have a good relationship with is going to forward an email you sent to them, to your previous company.  And if your previous manager hears through the grapevine that you have been calling on previous customers, that is not evidence, that is hearsay.  They need physical proof, more then just hearsay, and obtaining physical proof is extremely difficult.

Here is a clever defense to any non-compete threat.  For a non-compete to be valid, the customers your previous employer is trying to protect must be exclusive. Meaning there is an exclusive contract between the customer and your previous employer. How many staffing companies do you know that have exclusive contracts with customers? Most of the time customers are free and clear to do business with any staffing firm of their choice, and they are not limited by a contract with any specific staffing company.  So being it is not likely your previous employer has exclusive contracts with customers, they cannot enforce the non-compete because the customers they are claiming as their own, are in fact already doing business with several other staffing firms as there is no exclusivity.

So not only is it very hard for a company to produce evidence to prove a non-compete is being violated, most of the time there is no exclusive contract in place with the client in question, as such without the exclusive contract the staffing company cannot claim that client as an asset they must protect.  Basically this means most employers would never sign a contract that forbids them from working with other staffing companies.  Most of the time the employer will have several agreements in place with multiple staffing companies.  As such, no individual staffing company can use that employer as an exclusive client from which to enforce a non-compete.

The underlying problem with non-competes is if you do not understand how hard they can be to enforce, you might fear them. Most people fear the concept of law and court.  But if you understand they are very hard to enforce, then maybe you will not fear them so much.  And, if a company is willing to pay an Attorney to go after you, the deterrent is your paying an Attorney to defend yourself.  These cases are usually very simple.  I cannot imagine it costing more then $5k to $10k max to defend yourself.  And much of the time if a person defends themselves they will win, and might win a counter suit to pay legal fees.   It all depends on how bad you want to keep your new job, and if you are willing to fight for it and not be pushed around.

This is the way I look at it.  What is the worst that can happen to a person if their previous employer tries to enforce a non-compete?  The court might award a restraining order that basically tells the recruiter/rep to cease and desist whatever it is they are doing. Which usually means stop calling on previous customers.  Violating a non-compete is not going to land a person in jail.  And it is near impossible to prove any damages. I have never in 17 years heard of a staffing company actually suing an ex employee for damages.  So to me, if a restraining order is the worst thing that can happen to me, I would take a new job and switch companies if that moved my career forward, and take the risk regarding the non-compete. And I would be smart about it, and do all I can to stay low profile so my previous employer does not find out.

What I have just documented is not legal advice. I am not an Attorney. But I have been involved in dozens of non-compete cases and paid attention to all the details.  What I just shared with you is my personal knowledge learned by being personally involved with non-competes both as an employer who tried to enforce them, and as an individual who’s previous employer tried to enforce such an agreement against me.

But as I said, if you stay under the radar and be smart for 6 months, there will not be enough time left in the non-compete to justify going after you.  And, usually when a company does try to enforce a non-compete, it is right after you leave them, when there is also some bad blood, some negative chemistry.  If your previous manager personally likes you, they are not likely to bring up the non-compete. And if you are not openly trying to go after previous customers where you are asking for trouble, it is too much of a hassle for most companies to consider trying to enforce.

If you think about the common sense, why would a company spend money trying to enforce a non-compete against you, if you are not doing anything to harm them?  As I said, usually the enforcement of a non-compete happens where there is bad blood between a person and their previous manager, and that person aggressively violates their non-compete making it obvious they are going after previous customers.

Remember this,  Attorneys can write whatever they want into a non-compete agreement and you can sign it.  But that does not mean it is enforceable under Federal and State law. And, for a company to enforce a non-compete, they must show proof you are violating it such as emails, letters, etc.  Just hearing that you went to work for another company down the street is not evidence you are in violation and a judge is not likely to award a restraining order without serious hard proof and evidence that you are in fact violating a non-compete.

The honest truth is if non-competes were such a big deal, no sales person or recruiter anywhere would ever switch companies. But they do, all the time!