Q: If I have a restraint of trade can I leave and work for someone else?

A: It depends. In jurisdictions where restrictive covenants are enforceable, they are generally only enforceable where the terms are reasonable. For instance, a non-competition agreement that is reasonable as to time, geography, and activities restricted will likely be enforced. Likewise, a non-solicitation agreement that explicitly states what employees or customers are restricted will likely be enforced.

To the extent that you take the new offer, and your current employer feels that you are violating, or are likely to violate, the terms of your restrictive covenant, they may file a lawsuit naming you and your new employer as defendants.

Therefore, as a practical matter, you should advise the company that approached you that you are subject to a restrictive covenant and provide them with a copy of the covenant. The new company could then evaluate whether their offer would violate the agreement, and, if so, potentially negotiate with your present company for a release. I would also recommend that you hire a lawyer in your jurisdiction to review the terms of your restrictive covenant, and potentially negotiate with your present employer.

The above information is intended for informational purposes only, and should not be used as legal advice applicable to the reader’s specific situation. The provision of this information to the reader in no way constitutes an attorney-client relationship.