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Non-compete Clauses...what is your opinion???
Replies to This Discussion
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Permalink Reply by Wendy Breibach on
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I used to work at a Massage Envy in a small town and I had to sign a non-compete agreement. It was for a year and a ten mile radius. The down side to that is that the clinic was in the middle of the city and the ten mile radius literally covered the entire city. So basically I was blocked out of working in the city for a year. I don't agree with non-compete agreements but I do think that you should sign something stating that you will not take their client lists. But once you leave an establishment you can post in the paper that "you are on the move". It would be the client's decision to follow you or not. I absolutely love what I do and I don't want to be stopped in my career and have to get another job just because a company doesn't want me to work in their area. I worked very hard to get where I'm at and spent a lot time of money doing so.
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Permalink Reply by Daniel Cohen on
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So has the business worked hard and spent money to build clientele and attract Therapists. When signing a contract with a business read carefully conditions following employment. They may be even more important to you later unless you make a career of it.
Remember a contract is a paper agreement. You are able to cross out and edit. Initial each change in the margin next to it. Make sure the one signing for the company does the same. You should both initial each page as well in the corner. Failing to make changes and getting their approval means you accepted All the terms.
Wendy Breibach said:I used to work at a Massage Envy in a small town and I had to sign a non-compete agreement. It was for a year and a ten mile radius. The down side to that is that the clinic was in the middle of the city and the ten mile radius literally covered the entire city. So basically I was blocked out of working in the city for a year. I don't agree with non-compete agreements but I do think that you should sign something stating that you will not take their client lists. But once you leave an establishment you can post in the paper that "you are on the move". It would be the client's decision to follow you or not. I absolutely love what I do and I don't want to be stopped in my career and have to get another job just because a company doesn't want me to work in their area. I worked very hard to get where I'm at and spent a lot time of money doing so.
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Permalink Reply by Relax & Rejuvenate on
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There is a lot of mis-information out their regarding non-competes, and much of it has to do with the language we use, just like I often see posts about being "hired" as an ""independent contractor" or room renter, when neither is actually possible.
Non-competes, even in states where they do hold up in courts, have to be "reasonable" for which there is no written definition. but you can be pretty sure it does not include not practicing your chosen profession for two years without any form of compensation.
That being said, there can be -- even in CA -- enforceable non-solicitation provisions in a written agreement which are very enforceable. They can include things like "Any client encountered while working here is not to be treated by you anywhere else" which gets around the multiple employer issues or employer vs. private practice issues. Similarly, it has been successfully argued that establishing a coimpeting massage business in "close proxmitiy" to your prior employer, or prominently using the name of your former employer in advertising is an attempt at solicitation of your employers clientele.
Like most legal issues -- even if one party is 100% in the wrong -- non-competes are difficult and expensive to fight. One of our former employees was being sued by a former place of work, who had her sign the most ridiculour non-compete our attorney had ever seen -- and she had been an IC with them. It still took $2,500 in legal fees to reach a settlement -- to prove the Non-Compete was not enforceable in a court of law would have cost $10K or more, and even winning the suit would only have left our employee free to work for us, unlikely to be able to recover 100% of her legal fees.
Singing a non-compete, no matter how ridiculous it might be, is creating a costly deterrent to ever getting out of it.
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Permalink Reply by Gary W Addis, LMT on
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Seems to me that we all benefit when more people are exposed to therapeutic massage & bodywork. If the big chains with their advertising power can help build public awareness of massage, local sole practitioners benefit. Likewise, the big chains benefit from the good reputations earned by skilled, well established sole practitioners. I mean, when aches and pains comes up in casual conversations at, say, distant family reunions or social events, we all benefit if someone in the circle of friends says, "You should get a massage--it cured my neck pain!" I don't think the name of a NYC practitioner is mentioned to a cousin who lives in Louisiana.
Gloria Coppola said:
Non Compete clauses are not only unrealistic , they will not hold up in court according to some attorney's I have spoken to in the past. No one can truly stop you from working. You have the right to work.
What would be nice, is if people had a honor system and you could trust that someone wouldn't open next door from you after you train them. Some schools try to make instructors have non-compete clauses signed as well ,FYI. They expect Ce providers to only teach at their facility too and this is ridiculous. Seems there is a lot of fear out there. There is enough for everyone!
When I owned facility where I employed MT's, I never made them sign a non-compete. When I had my massage school, I encouraged my instructors to teach and share their knowledge wherever they could. I even had one of my instructors open a massage school down the road after working for me for a couple of years. She did not tell me, because she was afraid I'd be mad. I wasn't mad, I was disappointed I had to hear about it from someone else. When she opened her school, it did not effect my enrollment and they did well too!
So there is enough to go around for everyone!!!
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More mis-information.
Right to Work has nothing to do with non-compete clauses. Right to Work has to do with whether or not union membership is required in a unionized workplace.
Similarly, "at will" employment states -- not all of which are Right to Work states - allow an employer to terminate employment for ANY reason, but it does not absolve the employer from paying unemployment benefits to an employee terminated without cause.
Rick Morgan said:Non-competes are not legal- it violates the "right to work" laws.
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I have Family Attorneys that handle my assets and legal matters that may arise. I presented a Non-Compete to a lawyer at the firm and was told that Non competes aren't worth the paper they are written on in most instances. She informed me that it's typically for Executives, To Protect Trade Secrets, or to Recover Training Expenses.... But as a whole they aren't legal if you don't fall into these categories.
What you other Therapists may be finding is employment is contingent upon you signing these forms, well that is legal an employer can choose to offer or rescind and offer for any reason not protected by law, plus pretty much all of the US now is "AT WILL EMPLOYMENT" meaning your or the employer may terminate employment at any given time with no notice.. So if you sign the form knowing it's not legal as I've done and the Spa Owner learns your working elsewhere and they fire you make sure it's in writing or the reason given is for violating the non-compete clause, because you will have a nice lawsuit. 99 times out of 100 you will be fired and not given a reason, this is legal of course.
I know several Therapists that think because they sign these that it becomes enforceable, but you can't get around the law, just because you sign it doesn't mean the law won't apply in your case, employers just know that 99% of people wont seek action because they signed the forms.
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The non compete clause is primarily aimed at discouraging employees from opening a competing business across the street. In that regard, it maybe would be upheld in court. But I don't think there is any chance that a court would prevent an employee LMT from going to work at another spa. Any clients who followed the therapist to her new employer's shop do have the right to choose who they give their business to, don't they?
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I worked at a Massage Envy in NC & Florida both places required Non-Competes to be signed as a condition of employment, I'd never heard of a non-compete clause except for the ethical issues surrounding taking clients, but like you said there are no official standards or regulations that prohibit a client from leaving and following a therapist.Retail Massage businesses now are using these forms as ways to IMHO bully LMT's, they just want you working for them, but the pay is such that in order to practice at a retail massage location you either gotta have a better paying job at a Spa, Medical, or private practice, or a normal 9-5 job that ends up being the bulk of your income.
While most states allow non-competes they all have strict guidelines that prevent them from being enforced in many professions. Matter of fact in all 50 states apparently Doctors are the only profession that don't allow non competes.
Gary W Addis, LMT said:The non compete clause is primarily aimed at discouraging employees from opening a competing business across the street. In that regard, it maybe would be upheld in court. But I don't think there is any chance that a court would prevent an employee LMT from going to work at another spa. Any clients who followed the therapist to her new employer's shop do have the right to choose who they give their business to, don't they?
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The enforcement is the gist of the matter, though. They can force a signature on a non-compete in order to work in a Hardees; doesn't mean it could be enforced. Certainly an ME employee, giving massages for $15 per session wouldn't be prohibited by the courts from going to work in a spa paying 60% commission on $200 sessions.
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Glad you brought this up.
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Even working at a competitor to a ME, Hand & Stone, SpaVia, etc. a non compete isn't enforceable 1st because we are in a free market country, then the language in most states regarding non competes most often refers to the employee being an executive, manager, or someone w/ proprietary knowledge none of these companies possess anything like that. Each of their business models are the same with little nuances to supposedly separate themselves from the competitors or in their belief make them better.
Gary W Addis, LMT said:The enforcement is the gist of the matter, though. They can force a signature on a non-compete in order to work in a Hardees; doesn't mean it could be enforced. Certainly an ME employee, giving massages for $15 per session wouldn't be prohibited by the courts from going to work in a spa paying 60% commission on $200 sessions.
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Granted this is 9 years old and Colorado just began regulating Massage in Colorado at the time this was posted. But currently in 2018 NCC's are putting in their language that Therapists are exposed to "Trade Secrets" we all know there isn't really anything we are exposed to from one company to the next, the only thing different is the paint on the walls and location.
The biggest argument I have used to debunk this was apply this to a Medical Doctor as I am previously an RN. So is medicine practiced differently at one hospital/clinic to the next?? We are a part of the medical industry right! So does anyone really see a Hospital applying this to Doctors or Nurses, nope, they are all paid livable wages, a Therapist typically has to work at multiple locations to simply make ends meet. I dare you to show me a rich Massage therapist, hell doctor or nurse for that matter.
I have a feeling these have become more scare tactic than enforceable, and if you refuse to sign well an employer simply doesn't have to hire you. I am actually going to try that with this NCC I have right now from Elements massage, I'm going to refuse to sign it start my shift (If I get to that point before they realize it) and if I'm fired look at my options. I have worked at other Elements none asked me to sign them, well one did but it was straight forward don't solicit clients in his business for your personal business.
The stipulations in this contract were a Medical Waiver if injured or ill on the job I must use their Doctors (No way this part is legal), and the employment part has a 3 mile radius and 1yr ban, what I don't know if all must be met i.e. can I not work for competition for a year, or if I do must they be over 3 miles away, you see it's vague in so many ways. In years past Attorneys said thy aren't enforceable in 2 different states FL & NC, but that you could still be denied employment because employer just wouldn't hire you, or they would fire you and not give a reason why under the "At Will" employment laws.
Erica Olson said:I just had a discussion along these same lines over here.
Colorado is also an at-will state re: employment. I think it's perfectly reasonable to have a line in a contract stating that you will not solicit a company's clientele while you are working for them, but there are gray areas even then. What if:
- a client from Employer A also visits you at Employer B?
- a client that you know from Employer A asks where else you work and wants to come to your personal office?
- a client that you also know socially sees you at Employer A, but wants to come to your personal office?
- a client sees you in private practice, and then sees you one day at Employer A; has "your" client just become "their" client?
- a client from Employer A finds your website and comes to your office, and you don't make the connection until later?
As Gloria states, there's enough to go around. Clients are people, not property, with free will of their own, and if they choose to follow a therapist when that MT leaves a place of employment, that should be up to them--whether or not they have been solicited after the MT leaves. Regarding client lists, in Colorado, publicly-accessible names and address are NOT considered trade secrets.
Non-competes in this state are really only binding in a small handful of circumstances:
- as part of any contract for the purchase and sale of a business or its assets
- contract for the protection of trade secrets (publicly-accessible names and address are NOT considered trade secrets)
- contractual provision providing for recovery of the expense of educating and training an employee who has served an employer for a period of less than two years
- executive and management personnel and officers and employees who constitute professional staff to executive and management personnel (ie, top-level managers)
Two years is a ridiculous amount of time to put in a non-compete, anyway. Even a year is too long, in my opinion. Three months is fine, six months is on the outside edge. IF I believed in them--which I don't.
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