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Non-Compete Agreements: Disagreeable

I hear from massage therapists many times that they have been asked to sign a non-compete agreement when accepting employment. Here’s my take on that: There are enough aching bodies and stressed-out people to go
around.

I have a decent-sized staff of 14, and I have never asked a single soul to sign a non-compete. Most of my staff members have been with me for years, and I am certain if one of them left, a certain amount of people
would follow them out the door. It has been a very rare occurrence for me to lose a staff member, and when I have, and someone calls for them, I say “Lisa has opened her own business located at so-and-so.” To do
otherwise isn’t going to endear me to any clients. They’d eventually find her anyway, and their opinion of me would go down if I bad-mouthed her for leaving or said anything negative about her departure.

Fortunately, my business is not built on one person’s ability, other than my own ability to hold it all together. I would no more try to prevent someone from striking out on their own, or trying to better their circumstances in any way, any more than I would cut off my nose to spite my face.

I pride myself in being a good person to work for. My staff members are paid above the average. They are all independent contractors…they come and go as they please. I don’t expect anyone to sit around, unpaid,
while they wait for clients who may or may not materialize. I don’t expect them to scrub the toilet. My expectations of my staff members are that they act ethically and professionally and that they put the client
first, give great service, and act like team players. It’s very rare that I’ve been disappointed. I have people standing in line that would like to work in my clinic. No one has ever left me without working a notice.

When it comes to non-compete agreements, Dale Atkinson, internationally-known attorney who represents the FSMTB, put it this way at last year’s Federation meeting: if an employer asks you to sign a non-compete agreement, go ahead. It won’t stand up in court unless you happen to be the VP of Massage Envy who is privy to company secrets. When it comes to the average massage therapist, it’s just a blatant attempt to restrict free enterprise, and it won’t hold up.

I believe people have the right to work where they choose. And yes, I have spent money to advertise my staff members and done marketing for them…but in spite of that, I can’t visualize myself possessing the type
of professional jealousy that would make me ask a therapist to sign a paper that virtually says they can’t practice unless it’s in my place of business or far enough away that it is no longer competition. What’s
the matter with people? Competition is a healthy thing. Trying to tell someone that they can’t work unless they work for you is contrary to the principles of entrepreneurship. To me, the message is “I’m so insecure in my own ability to maintain a decent business that I wouldn’t want you to compete against me.”

I suggest that instead of having non-compete agreements that aren’t going to fly anyway, employers should provide a work environment that attracts quality people. When a spa or clinic has a revolving door of people coming in and out, the problem is usually the management, not the staff, and most of the time the owner is in denial. Treat people well and you won’t need a non-compete agreement. If someone leaves and opens
their own business, take the high road and wish them well. It will serve you better in the long run than filing a lawsuit and acting like the clients they might have had are your property. People have the right to do business with whomever they choose. Trying to prevent that is like herding cats, and it will not cultivate loyalty from either employees or clients.

Peace & Prosperity,
Laura Allen



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Comment by Laura Allen on July 20, 2010 at 6:01pm
If anyone is unethical enough to disclose confidential information about clients, including who they are and when they have visited the business, they don't belong in this business, regardless of signing any kind of agreement. I don't tell a brother that their sister was in my office, a spouse that their partner was in my office, etc., and neither should anyone else. If they want to tell they were there, that's their business, but it isn't right for the therapist to do it.
Comment by Steve Ibach on July 20, 2010 at 4:29pm
I don’t think it is a good idea for anyone to sign a non-compete under the assumption that it won’t be enforceable. While that is probably true, you never know as these types of matters are generally subject to the individual judge’s opinion. Also, if the employer wants to try to enforce the agreement the therapist could face hefty legal costs (and lots of aggravation) trying to defend himself even if he eventually wins.

Employers should consider having therapists sign non solicitation and confidentiality agreements, however. That protects the employer from therapists taking clients that the business brought in and it provides some protection against therapists disclosing confidential information (such as telling people about specific clients that visit your business). This type of agreement is generally very enforceable.
Comment by LeahF on July 10, 2010 at 11:37am
Laura!
I am thoroughly impressed by your integrity in maintaining your business. I sure wish my employer was like that! Rick, I am employed part-time at a spa in VA and I had to sign a contract saying that I cannot work within 5 miles of the spa during employment OR for 12 months after my employment ends. At this point I have chosen to work outside of the 5 miles anyways but are you saying that they have no right to do that while employed or for the 12 months after? I have had numerous co-workers have issue with that contract especially since the spa is in a prime high-spa area concentrated in a 2 mile radius.

Thank you for your information

Leah
Comment by Anita Massage on July 7, 2010 at 11:03pm
Where are you located and are you hiring :O)
Comment by Gloria Coppola on July 4, 2010 at 5:19pm
I Totally Agree Laura. Many years ago in New Jersey I was asked to sign a non-compete. My attorney also told me it won't hold up in court because everyone has a right to work anywhere.
I signed it and did not worry about it at all. It wasn't unreasonable. I was asked to avoid a 3 mile radius.
Since my employer was very good to me, I would never have infringed on her turf so to say anyway. It was actually beneficial to go out of the area, where I became much more successful ;).
Comment by Scott M. Behren on July 2, 2010 at 7:53am
In many cases, you will need to sign a non-compete in order to keep your job. However, it does not mean that such agreements are always enforceable. In some states they are less enforceable than others, and even in states where they are generally enforceable, there are many defenses to enforcement. if you are unsure, speak to an employment law attorney to review the non compete. For some more information on the enforceability of non-competes check out my employee rights blog at www.takethisjobnshoveitblog.com.

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