Can I Break My Non-Compete Agreement?

If non-compete agreements or clauses are generally enforceable in your state, and yours is reasonable in scope and your employer hasn't done something to make it null and void, such as one of the reasons on the previous page, then you're likely bound by it. Your employer might sue you and win if you don't honor it. A former employer might even have a legit suit against your new employer, if they warn your new employer that you're breaking your non-compete agreement, and your new employer doesn't heed the warning by firing or forcing you to quit.

If your non-compete agreement is not enforceable in your state in the first place, then you're already out of it, unless your employer tries to set a new court precedent. If it's generally enforceable, but questionable for any of the reasons on the previous page, then you've probably got a good shot at breaking it, at least in part. Below are a few more examples why your non-compete agreement might not be enforceable, in whole or part.

• You quit or were fired because your employer tried to make you conduct illegal activities, and you wouldn't.
• Your employer breached one or more terms of another contract, such as your employment separation agreement.
• Your new company didn't tell you that you had to sign one, until after you quit your old job to work for the new company.
• You live in a state that does not enforce them in whole or part, but you had to sign one to work for an employer located in a different state.

The examples throughout this article are based on only a handful of court cases, so there are likely more reasons that you can—or can't—legally break your contract. But it's important to note that these or any example cases don't necessarily set precedents in every state, and there may be other factors involved.

If you're gifted with the power of persuasion, you might be able to finesse your employer into letting you break your non-compete agreement. Natch, get it in writing with an effective date and signatures. Also be careful about threatening to air company dirty laundry as leverage, or a no-neck hairy guy resembling one in the cast of characters from The Godfather might sneak up behind you someday! Joking aside, if you don't approach it tactfully, you might never be able to use the employer as a reference. Your employment there will probably show up in background checks, so it's always a good idea to avoid burning your bridges. It's also a good idea to avoid giving the employer legal ammunition against you, like blackmail.

Another way to bypass the judicial system, is to arbitrate under the National Rules for the Resolution of Employment Disputes. (Browse the Rules/Procedures section.) You don't need an attorney on your side of the bargaining table, but the American Arbitration Association recommends it. Aside from the adage that "A lawyer who represents himself has a fool for a client," it might get a tad lonely on your side of the table with a pack of corporate lawyers sitting across from you.

In fact, arbitration might be your only choice, if you also signed a mandatory arbitration agreement or clause. For example, your employment contract might have included a mandatory arbitration clause.

Otherwise, to break your non-compete agreement without fear of retaliation, you might have to sue or at least threaten to file a suit via a "nasty-gram" from your attorney. Only an attorney can tell you for sure. But as with medical matters, a second or even a third opinion might be a good idea, again to avoid burning your bridges if don't have to. Multiple opinions sound expensive, but some attorney referral services will arrange discounts for your first visits. You might not have to pay up front at all, if the attorneys smell damage or punitive dollars and make their fees contingent on winning your case.

Non-Compete Agreement
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