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Non-compete Clauses...what is your opinion???
Replies to This Discussion
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Permalink Reply by Crystal Dawn Suovanen on
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I actually applied at a Massage Envy here in San Diego as it was opening. Business had been slow at the Holistic Center I worked at and wanted to make a little more until business picked up. I already knew I would work a lot more hours for a lot less pay, but it would have been worth the supplemental income. When I met with the co-owner she had a lot of stuff to fill out, including a non-compete form.
I ALWAYS read everything before I put my name on it. From what I understood from the form you had to agree to ONLY work for ME, to not "steal" their clients and if you quit or were let go, couldn't practice massage in the area for two years.
I had been ready to sign my life away at ME until I read that. I told the owner I'd have to think about it, then left her a message saying thanks, but no thanks! You're telling me I have to quit my awesome job at the Holistic Center, bust my chops at ME and then if they decide to let me go (they can let anyone go for any reason) I can't practice my craft for two years?
I can't believe places feel like they have the RIGHT to say you have to sign a non-compete or you don't get hired. If they lose some business to someone else it's not because the therapist is an evil conniving client stealer, it's because they couldn't keep their client happy and the client chose the better business/therapist.
What is even more unbelievable is that therapists actually SIGN these. I hope in the future non-compete clauses like ME's are banned. Do state wide massage corporations really think they're competing for clients with individuals? Ridiculous.
I doubt a non-compete clause could be taken seriously in court anyways.
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Permalink Reply by Gloria Coppola on
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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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Permalink Reply by Rajam K Roose on
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Hi Crystal,
I'm also in San Diego and here in the state of CA, non-compete's are illegal and will NOT stand up in court. In fact, it is also illegal to not hire someone just because they don't sign a non-compete here in CA. If you really want the job, or want to prove a point you could take them to court and you would win.
Of course, this doesn't count for them saying you can't contact their clientele after you leave (although if they contact YOU, that's a different matter!)
Even if you signed it, again, the state of CA is really against these types of contracts so they wouldn't be able to uphold it (the non-compete).
Any information given about non-competes should be thoroughly checked and you can contact any lawyer here in San Diego to find out if the info I'm giving you is correct.
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Wow, Rajam, I wonder if they use a different name for it at Massage Envy or if they don't know it's illegal. I have some friends who work for them, I should ask, thanks.
When did this law go in to effect and where can I read about it? (I'll try googling.)
Rajam K Roose said:Hi Crystal,
I'm also in San Diego and here in the state of CA, non-compete's are illegal and will NOT stand up in court. In fact, it is also illegal to not hire someone just because they don't sign a non-compete here in CA. If you really want the job, or want to prove a point you could take them to court and you would win.
Of course, this doesn't count for them saying you can't contact their clientele after you leave (although if they contact YOU, that's a different matter!)
Even if you signed it, again, the state of CA is really against these types of contracts so they wouldn't be able to uphold it (the non-compete).
Any information given about non-competes should be thoroughly checked and you can contact any lawyer here in San Diego to find out if the info I'm giving you is correct.
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Okay, read about it here. Looks like it was banned in 1872! Wow. I am going to call all my friend who work for various Massage Envy's and ask them if they signed anything even remotely like a non-compete form.
Love learning new things. ;)
Crystal Dawn Suovanen said:Wow, Rajam, I wonder if they use a different name for it at Massage Envy or if they don't know it's illegal. I have some friends who work for them, I should ask, thanks.
When did this law go in to effect and where can I read about it? (I'll try googling.)
Rajam K Roose said:Hi Crystal,
I'm also in San Diego and here in the state of CA, non-compete's are illegal and will NOT stand up in court. In fact, it is also illegal to not hire someone just because they don't sign a non-compete here in CA. If you really want the job, or want to prove a point you could take them to court and you would win.
Of course, this doesn't count for them saying you can't contact their clientele after you leave (although if they contact YOU, that's a different matter!)
Even if you signed it, again, the state of CA is really against these types of contracts so they wouldn't be able to uphold it (the non-compete).
Any information given about non-competes should be thoroughly checked and you can contact any lawyer here in San Diego to find out if the info I'm giving you is correct.
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Permalink Reply by Erica Olson on
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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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Permalink Reply by Laura Allen on
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I was part of Erica's discussion on the other forum about this. Got quite a bit of information from Dale Atkinson, well-known attorney.
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Permalink Reply by massagenerd on
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The reason I brought this up is because I just found out this past week that a Massage Envy in the town I work in, is requiring people to sign a 2 year non-compete clause. The manager told me that every ME is different about how long they have their employees sing one of these so called contracts. The manager also said they are pursuing one person right now who broke the contract (typical scare tactics).
I teach at one of the main schools around the area and we have tons more students than the other two schools combined. I told ME that I could not recommend my students to work there if they are going to have that long of an agreement and they said their attorney recommended it. Hopefully they will change their minds, because me not referring my students there could have an impact in their future.
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Permalink Reply by Marilyn St.John on
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Unfortunately, non-compete laws are in effect and enforceable in Michigan, in case anyone is interested...I'm not sure if the ME studios around here include it, having never applied to one. I think it's wrong to ask anybody to sign something like that in this field, it implies a "proprietary knowledge" of massage therapy in general as far as I can tell.
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Mark, you wrote
"I tell my employees that if and when they leave, they can set up shop wherever they want and take out ads telling the public where they are, but if they start marketing themselves at my place of business (that includes giving clients your personal info or taking their contact info) they will be charge with theft. This may sound harsh, but as a business owner I invest a lot of money to get new clients in the door so my therapists can make a living"
Not sure what exactly you disagree with about my statement as I didn't mention any specifics and you do agree the therapist can advertise when they leave your place. If the former client contacts them, they have every right to accept them as a client. I didn't say anything about advertising on the property of their former employment.
I have worked somewhere as an IC and paid for my advertising and all other marketing materials. Although I told the woman I was working for that I wouldn't contact the clients when I left, when they contacted me, I did tell them where I was. They contacted me b/c all marketing and such was done on MY dollar, my business phone, my marketing and my website -- all paid for by me. So, that is a little different and I don't think there's a problem with that.
In your situation where you've paid for all marketing and booking then you have every right to prevent the therapists from advertising at your place and in fact there should be something about it in your contract. Definitely, I agree that it is okay for a business owner to put something in their contract to protect their investment. Also instead of a non-compete, the contract should cover who owns the intake forms and client information.
However, I think it's wrong for an employer to try to prevent said employee/IC from working somewhere else within their city. Although it is obviously legal in some states to have a non-compete, I think the contracts are a bit silly. Not to mention, if a client prefers a therapist and finds that therapist, it is in their right to continue to see that therapist.
But, on a side note, playing devil's advocate-- although you have spent money on advertising, it is the therapists skill that keeps them returning to the same therapist. We don't "own" our clients, they have every right to make their own choices where they are going to spend their dollars.
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Rick, So sorry about getting your name wrong-- I have slight dyslexia (although it's the writing one)
I completely agree with you that therapists who solicit clientele when they leave a place of business if they have had no part in marketing or advertising is not ethical and I think owners should write up contracts to help prevent this. Unfortunately, many of these contracts are focused more on where the therapist goes to work as opposed to the rules of engagement with the clientele of the spa/massage center.
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Rick--
So what do you think about contact information that is publicly available, like in phone book? In Colorado, non-competes do not consider such as "trade secrets" and thus protected.
Rick Morgan said:You are right, we don't OWN our clients and yes they do have the right to go and spend their dollars where they please. However, business do OWN the client contact information. It is an asset of the business and quite valuable. Just look at how much people spend to buy mailing lists. The value of that information is lost if therapists are solicitting the contact info or worse (I've seen this) going through the intake sheets and copying it down or downloading it.
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