I worked as an independent contractor for Company A (based in CO) at Company B (in WI). As I was letting B know I would be no longer working there B told me their of dissatisfaction with A and asked if I would ever be interested in working with them directly. So if B does not renew their contract with A in April 2013 because of how unhappy they are and then B approaches me after the termination of that contract am I violating my non compete clause. Is there any competition if B fires A?
"Contractor acknowledges and agrees to not directly or indirectly compete with the business of Company and its successors and assigns during the period of this agreement and for a period of 3 (three) years following the termination of Agreement end notwithstanding the cause or reason for the termination."
It's difficult. Normally, this clause would be upheld, because it is quite specific indeed. However, Wisconsin is many states away from Colorado. Ordinarily, a non-compete clause that extends that far a geographical distance is overly restrictive. Hence, there's a chance you could argue that the non-compete agreement is invalid.
Is that the entire non-compete clause? If so, you would have a decent argument that it is unenforceable.
In Wisconsin, there are general guidelines non-competes must comply with in order to be enforceable. One of those guidelines relates to distance. The locations covered or distance from the location at which you worked is needed in order to define the "reach" of the noncompete provision.
If what you quoted is indeed the entire provision, the distance is left undefined, which would likely make it overbroad, as it could arguably prevent you from competing with the Company anywhere.
Before making any final decisions; however, I would advise you to meet with an employment law attorney and have your entire agreement reviewed to make sure that you understand everything that is in there and to ensure that you do not violate it by working directly for Company B.
Hope that helped.
James A. Walcheske
Walcheske & Luzi, LLC
http://www.walcheskeluzi.com
This is a good example of a situation in which an experienced attorney will be essential. Some companies will aggressively litigate these non-compete clauses. You need to talk to an experienced attorney before making any decision about this potential job. Make sure you understand what you are getting into.
Lately, there has been a trend in the law toward enforcing these type of clauses more strictly against employees.
http://www.wisbar.org/AM/Template.cfm?Section=News&Template=/CM/ContentDisplay.cfm&ContentID=84091
