With all of the purges going on how do noncompetes hold up if your position was eliminated? Doesn't make sense that they can be inforced if you didn't quit, weren't fired and your position was eliminated.
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Question about noncompetes
- Thread starter Buster Wafflehouse
- Start date
Buster Wafflehouse said:
Most non-competes are written to protect the employer regardless of whether the employee quits, gets fired, gets hit by a train... whatever. Whether it is enforced in the case of a "downsizing" depends largely on exactly how much of a prick the ex-employer is...
They don’t hold up in court, because it looks the big evil corporation against the little man who is simply trying to earn a a living.
Take the last sentence of RNR's statement and X-talker. If the terminated employee can find a job "across the street" (like they can these days) then the firing company may want to make them sign to keep their severence/ compensation, etc. which bounds them to not taking the job. It's a gamble either way. But, in many SE states, the contracts are largely tools of fear. Good case in point was Steve McCoy and
Vikki Locke going from Star 94 to B-98.5 in Atlanta. Steve stuck it to 'em in his own kind way! Won one for the gipper!
RNR- think anyone ever firing themselves has asked one of the big C's to sign a contract promising to NEVER rehire said leaving employee?
Vikki Locke going from Star 94 to B-98.5 in Atlanta. Steve stuck it to 'em in his own kind way! Won one for the gipper!
RNR- think anyone ever firing themselves has asked one of the big C's to sign a contract promising to NEVER rehire said leaving employee?
My contract had a "cause or without cause" clause in the non-competition agreement. If, it was proven that I violated company policy they could fire me and enforce the n/c agreement. If, they decided to "make a change" through no fault of mine (cutbacks, change of wind direction) then I was free to walk across the street.
K~
K~
Tibbs2 said:
Tibbs, you've got it right--these things are largely tools of fear. One of the things companies count on is that a $30,000 a year jock can't/won't drop $500 or a grand on a lawyer to fight the thing. Most employees just Go Away.
The only time I've ever signed a non-compete was when there was a big check attached to get me out of town. As an employer I've never asked an employee to sign a non-compete. I think people have a right to make a living and shouldn't be forced to move in order to work in their chosen field. Beyond that, I've always felt that if a particular individual was so extraordinarily talented that their departure would materially damage my business, that would be MY problem--MY shortcoming--not theirs. In my first 30 years as a GM & Market Manager, it's worked out okay, so far.
Assuming you read the non-compete and knew what you were signing and later received some sort of benefit or compensation from your employer while working, it's just wrong to try to find some type of loophole to get out of that non-compete in order to screw over your old boss.
Leaving your job and taking employer A's intellectual property to employer B in order to make money for employer B while causing employer A to loose money is the same as stealing.
If you were laid off the contract is worthless unless you took a severance package. If you quit then you should honor the contract. If you were fired and didn't deserve to be fired, you're in the gray area. In any case, you have the right to work and the courts will rule in your favor, unless you've taken some intellectual property from your old job (i.e. customers). If your old employer can prove to the court or mediator that you are using his intellectual property to make a living, you're in trouble. Going to court or mediation will require a lawyer and cost you quite a bit of cash.
It makes since to me, but I don't think I'm doing very well putting my thoughts down in writing. The d@mn Gators are up 35 to 3 over the Bulldogs right now.
Leaving your job and taking employer A's intellectual property to employer B in order to make money for employer B while causing employer A to loose money is the same as stealing.
If you were laid off the contract is worthless unless you took a severance package. If you quit then you should honor the contract. If you were fired and didn't deserve to be fired, you're in the gray area. In any case, you have the right to work and the courts will rule in your favor, unless you've taken some intellectual property from your old job (i.e. customers). If your old employer can prove to the court or mediator that you are using his intellectual property to make a living, you're in trouble. Going to court or mediation will require a lawyer and cost you quite a bit of cash.
It makes since to me, but I don't think I'm doing very well putting my thoughts down in writing. The d@mn Gators are up 35 to 3 over the Bulldogs right now.
Problem with "intellectual property" arguments as they relate to small & small/medium radio markets is that VERY RARELY (almost never) is any air talent, salesperson, PD, GM, SM working at this level in possession of legitimate "intellectual property" valuable enough to significantly impact a business. In the Pcola market of recent lore, only Marty & Linda even come close--and, as much as I like and respect both of them--not even their act truly qualifies. Certainly, small-town radio acts were not what the writers of such laws had in mind when they put pen to paper.
The other aspect of non-competes that is so rotten in small-town radio is that ordinarily the employee is effectively cornered into signing these agreements. It is not as though multiple companies are (ordinarily) bidding for their services. In today's radio world most folks feel damn fortunate if they have one decent offer. And ordinarily the non-compete is sprung on them at the end of the hiring process. "Welcome to WWTF, and by the way, you'll need to sign these papers to get on the payroll..."
The other aspect of non-competes that is so rotten in small-town radio is that ordinarily the employee is effectively cornered into signing these agreements. It is not as though multiple companies are (ordinarily) bidding for their services. In today's radio world most folks feel damn fortunate if they have one decent offer. And ordinarily the non-compete is sprung on them at the end of the hiring process. "Welcome to WWTF, and by the way, you'll need to sign these papers to get on the payroll..."
The customer list of a radio station "should" be the most valuable piece intellectual property in a small to medium market station. When a salesman deals with and creates relationships with clients he could very easily make personal notes about all the accounts he dealt with and try to use them to make commission based sales at another station. Can you tell that I've had this happen to me before in another business?
Hypothetical situation: If a top salesman for WWTF quit and went to work for WNEU because he was offered more money it would be wrong for him to contact the clients he had worked with at WWTF and solicit their business for WNEU. It's likely that the owner of WNEU hired the salesman from WWTF because he already had good contacts he thought he could quickly sell spots to. That would be stealing clients from his former employer and the salesman could be sued by WWTF and he would likely loose that suit. In this case I don't think it would matter if WWTF had a non-compete contract with their salesmen or not, stealing intellectual property (clients) is just plain stealing. Now, if this salesman went to a Chamber of Commerce meeting wearing a WNEU shirt and ran in to some of his former clients from WWTF and those former clients told him they were interested in advertising on WNEU he wouldn't be stealing. It would be smart to have those clients sign an affidavit stating that he hadn't solicited their business and that the client had sought him out (before they signed any contracts with WNEU). This would help in his defense when he gets sued by WWTF.
For the sake of argument, lets say that Marty and Linda aren't using their real names. If they had a non-compete and their contracts expired and they went to work for WYCT, they probably couldn't use the names Marty and Linda... even if WXBM hadn't trademarked the names, also the name of the WXBM morning show would still be WXBM's intellectual property. In this case it's the talent that matters, not the name, so it wouldn't be a problem for WYCT and Marty and Linda to come up with something new. Also, since Marty and Linda have been a staple in Pensacola radio for so long, they probably have negotiated a contract with WXBM that does not include a non-compete.... at least that's what I would do.
For something really complicated, lets say there's a DJ running the 11 PM to 5 AM graveyard shift at WXXX. WXXX gave him his first job in radio and he was taught everything he knows about radio by the staff at WXXX. Like all employees at WXXX he has signed a standard non-compete stating he won't work as a DJ within 100 miles for one year after he leaves the station. This DJ comes into some money and quits his job to pursue his dream of owning a radio station and buys an AM daytimer in the same market. He goes in and starts running the station by himself using a satellite format and some automation. He is not in violation of his non-compete agreement with WXXX by owning and operating his own AM daytimer because he is using a satellite fed service and is not working as a DJ. On the other hand, the intellectual property he has from WXXX is everything he knows about running a radio station. He is now in competition with his former employer at WXXX. This could go anywhere.
Non competes are weird. When my attorney told me to have my employees sign non-competes he included one for me, an owner of the corporation, to sign. I didn't sign it. I also wouldn't sign any of the documents concerning drug and alcohol use on the job and proper use of company equipment or anything else. Those forms are all in my employee file, blank.
I had one employee that had cold feet about signing a non-compete fearing the worst since he didn't know any other field he could make a living in. In the end I let him keep his job without signing the non-compete and guess what, he screwed me over a few years later. I had the case set to go on the basis of stealing Intellectual Property, but Hurricane Ivan destroyed everything this man had and there was nothing for me to go after. If my dad was still running the shop, that guy would have had his knees broken, or worse.
I've had two other employees that wanted to leave on good terms and they negotiated a release from their non-compete and I've made it clear to everyone that they have the option to do this if they want to leave my company. One former employee agreed to pay me commission on any of my customers I lost to him for 2 years after he resigned. I had one employee that went to work for the county, so since I only had state and federal contracts, no city or county level contracts, I let him go with my blessing. That guy still sends me work on a regular basis and picks up some pretty good bird dog money.
Hypothetical situation: If a top salesman for WWTF quit and went to work for WNEU because he was offered more money it would be wrong for him to contact the clients he had worked with at WWTF and solicit their business for WNEU. It's likely that the owner of WNEU hired the salesman from WWTF because he already had good contacts he thought he could quickly sell spots to. That would be stealing clients from his former employer and the salesman could be sued by WWTF and he would likely loose that suit. In this case I don't think it would matter if WWTF had a non-compete contract with their salesmen or not, stealing intellectual property (clients) is just plain stealing. Now, if this salesman went to a Chamber of Commerce meeting wearing a WNEU shirt and ran in to some of his former clients from WWTF and those former clients told him they were interested in advertising on WNEU he wouldn't be stealing. It would be smart to have those clients sign an affidavit stating that he hadn't solicited their business and that the client had sought him out (before they signed any contracts with WNEU). This would help in his defense when he gets sued by WWTF.
For the sake of argument, lets say that Marty and Linda aren't using their real names. If they had a non-compete and their contracts expired and they went to work for WYCT, they probably couldn't use the names Marty and Linda... even if WXBM hadn't trademarked the names, also the name of the WXBM morning show would still be WXBM's intellectual property. In this case it's the talent that matters, not the name, so it wouldn't be a problem for WYCT and Marty and Linda to come up with something new. Also, since Marty and Linda have been a staple in Pensacola radio for so long, they probably have negotiated a contract with WXBM that does not include a non-compete.... at least that's what I would do.
For something really complicated, lets say there's a DJ running the 11 PM to 5 AM graveyard shift at WXXX. WXXX gave him his first job in radio and he was taught everything he knows about radio by the staff at WXXX. Like all employees at WXXX he has signed a standard non-compete stating he won't work as a DJ within 100 miles for one year after he leaves the station. This DJ comes into some money and quits his job to pursue his dream of owning a radio station and buys an AM daytimer in the same market. He goes in and starts running the station by himself using a satellite format and some automation. He is not in violation of his non-compete agreement with WXXX by owning and operating his own AM daytimer because he is using a satellite fed service and is not working as a DJ. On the other hand, the intellectual property he has from WXXX is everything he knows about running a radio station. He is now in competition with his former employer at WXXX. This could go anywhere.
Non competes are weird. When my attorney told me to have my employees sign non-competes he included one for me, an owner of the corporation, to sign. I didn't sign it. I also wouldn't sign any of the documents concerning drug and alcohol use on the job and proper use of company equipment or anything else. Those forms are all in my employee file, blank.
I had one employee that had cold feet about signing a non-compete fearing the worst since he didn't know any other field he could make a living in. In the end I let him keep his job without signing the non-compete and guess what, he screwed me over a few years later. I had the case set to go on the basis of stealing Intellectual Property, but Hurricane Ivan destroyed everything this man had and there was nothing for me to go after. If my dad was still running the shop, that guy would have had his knees broken, or worse.
I've had two other employees that wanted to leave on good terms and they negotiated a release from their non-compete and I've made it clear to everyone that they have the option to do this if they want to leave my company. One former employee agreed to pay me commission on any of my customers I lost to him for 2 years after he resigned. I had one employee that went to work for the county, so since I only had state and federal contracts, no city or county level contracts, I let him go with my blessing. That guy still sends me work on a regular basis and picks up some pretty good bird dog money.
RNR said: " As an employer I've never asked an employee to sign a non-compete. I think people have a right to make a living and shouldn't be forced to move in order to work in their chosen field. Beyond that, I've always felt that if a particular individual was so extraordinarily talented that their departure would materially damage my business, that would be MY problem."
WELL STATED, my friend. I just don't get this. The most successful people I know (owners, CEO's or employee's) are insulted at the thought.
To me it's like holding a person captive. It's so 80-ish.
RNR said: "In my first 30 years as a GM & Market Manager, it's worked out okay, so far."
BLANTANTLY FALSE...we ALL KNOW you're well into your second 30 years!!!!!!!!!!!!!!!!!!!!! (I actually physically feel that way as of late. Takin' it to seriously)
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Poledo - I see your point. I think we're more looking at holding people that are fired or layed-off against thier will to not being allowed to work, etc. It
happens more than you think.
And, I will read you latest post, but it's "to long" to quote a famous fellow poster (you). Just playin'. GO TITANS 8-0 (Had only one beer at the game!)
The night's still young.
WELL STATED, my friend. I just don't get this. The most successful people I know (owners, CEO's or employee's) are insulted at the thought.
To me it's like holding a person captive. It's so 80-ish.
RNR said: "In my first 30 years as a GM & Market Manager, it's worked out okay, so far."
BLANTANTLY FALSE...we ALL KNOW you're well into your second 30 years!!!!!!!!!!!!!!!!!!!!! (I actually physically feel that way as of late. Takin' it to seriously)
----
Poledo - I see your point. I think we're more looking at holding people that are fired or layed-off against thier will to not being allowed to work, etc. It
happens more than you think.
And, I will read you latest post, but it's "to long" to quote a famous fellow poster (you). Just playin'. GO TITANS 8-0 (Had only one beer at the game!)
The night's still young.
Tibbs2 said:
I meant to post that in my first reply... guess I got off on a tangent. If you are fired, and didn't deserve it, a non-compete is just useless, especially in Florida. Get a cheap lawyer to write a letter to your former employer and go on with your life. Your ex employer is going to have to show documentation that they have invested a significant amount of time and money into making you worth anything to your new employer. It'll usually cost them too much to TRY to make a case and it'll end there.
If you're being laid off, you should negotiate new terms to your non-compete as part of your severance package. If the boss won't negotiate, then you've just been fired.
The "intellectual property" angle I've been putting on this is the only way I've been able to keep an ex-employee from stealing my customers. It is included in a well written non-compete, but it applies even without a non-compete. A well written non-compete with a strong presentation can make an ex-employee afraid of you, if needed. I don't present a non-compete agreement to an employee until he is called in to my office to discuss his first annual pay raise (which is 15-18 months after they've been hired... because I'm an ass). If I've taught him everything he knows, he will be signing it or he will be giving me two weeks notice. I'm not training anyone to make someone else money.
Tibbs2 said:
Wow, I can't believe how long that post was. This topic hit a nerve.
Tibbs2 said:
Titans? What college is that?
Bama #1, That's cool! What happened to Auburn and FSU? Ouch. Florida, why'd you have to beat up the Dawgs so bad to reach #5? Yeah, I remember what we did last year.
What's this I hear about Georgia wanting to join the Sunbelt Conference? (Just stay away from the Southern Conference--App State is way too tough)!
Client list? Hey, if you want to know any radio station's client list, sit down with a radio, a legal pad, and a 12-pack of Old Milwaukee Light. It's all right there on the radio. Don't need no stinking "intellectual property."
If you've taught your employees everything they know, you haven't been selective enough. I try to hire people who are already smarter than me. Besides, selling is a talent (like singin' or dancin' or carrying a football). The mechanics of the job are simple. The intangibles--the stuff you can't teach--make all the difference. But in all my years (I'll admit to 37 years managing sales staffs) I've yet to meet the rep who can't be replaced. That is not to say that replacing a departed salesperson is always easy. But none of us is irreplaceable.
And I'll gently disagree with the notion that a rep who has sold for WAAA should not call on prospective advertisers on behalf of new employer WBBB. Media is not a field where clients are exclusive to one media company or another media company--we share nearly all of them. If a salesperson has played the game correctly from the start, he/she has acknowledged all along that all advertising is valuable and that all media (and all radio stations) have value--so promoting WBBB's virtues does not constitute "stealing" WAAA's business, merely bringing another excellent investment to the table.
Yeah, yeah--sounds like bullshit. But, you know, there's some truth buried in there somewhere... LOL!
Client list? Hey, if you want to know any radio station's client list, sit down with a radio, a legal pad, and a 12-pack of Old Milwaukee Light. It's all right there on the radio. Don't need no stinking "intellectual property."
If you've taught your employees everything they know, you haven't been selective enough. I try to hire people who are already smarter than me. Besides, selling is a talent (like singin' or dancin' or carrying a football). The mechanics of the job are simple. The intangibles--the stuff you can't teach--make all the difference. But in all my years (I'll admit to 37 years managing sales staffs) I've yet to meet the rep who can't be replaced. That is not to say that replacing a departed salesperson is always easy. But none of us is irreplaceable.
And I'll gently disagree with the notion that a rep who has sold for WAAA should not call on prospective advertisers on behalf of new employer WBBB. Media is not a field where clients are exclusive to one media company or another media company--we share nearly all of them. If a salesperson has played the game correctly from the start, he/she has acknowledged all along that all advertising is valuable and that all media (and all radio stations) have value--so promoting WBBB's virtues does not constitute "stealing" WAAA's business, merely bringing another excellent investment to the table.
Yeah, yeah--sounds like bullshit. But, you know, there's some truth buried in there somewhere... LOL!
Redneck, you mention picking up a station's client list by listening to the station. Is that legal? I had a cold call from a salesman from Clear Channel about a month after I started running adds on a Cumulus station. I asked him if he had gotten my name after hearing my commercial on the other station and he told me they weren't allowed to do that and that he had gotten my name from a BBB directory. Also, sure you could easily get a list of potential clients by listening to the competition, but if you go to work at WBBB and call your old contact at WAAA, the guy that you used to have cocktails with while selling add packages to him, and tell him that WAAA is in a bad state of disarray, people are jumping ship as fast as they can, and that his money would be better spent at WBBB, then that's just plain wrong. It doesn't matter if it's true, that's the purpose of the non-compete. Agree?
As far as new hires, I've never had the opportunity to hire people smarter than I am. I'm a genius. Yeah, you read that right, I'm a genius! I don't even like to hire people who have experience in my field, because it's too hard to re-train them to do the work "my way." Some of them have even tried to retrain me to do work their way. I do look for people who have experience in related fields and show an ability to use that knowledge to make working for me easier. Most of my employees have come up with better ways to do jobs than I could, but I'm the one that knows the textbooks, takes the tests, and carries the licenses, so everyone relies on me in the end.
As far as new hires, I've never had the opportunity to hire people smarter than I am. I'm a genius. Yeah, you read that right, I'm a genius! I don't even like to hire people who have experience in my field, because it's too hard to re-train them to do the work "my way." Some of them have even tried to retrain me to do work their way. I do look for people who have experience in related fields and show an ability to use that knowledge to make working for me easier. Most of my employees have come up with better ways to do jobs than I could, but I'm the one that knows the textbooks, takes the tests, and carries the licenses, so everyone relies on me in the end.
In de-[][][] (fence) of Poledo - he's looking at it from his business, not radio business.
Radio guys think ads, voices and ratings wars and any edge one person can take from
a previous station to the next is the issue.
Talk of contempt for the SEC shall NOT be tolerated, RNR. Rule 1.001.001 of RI board.
Once a redneck, most always a redneck. They haven't totally accepted you up thar
have they? I always thought you might come back.
A radio station worth $40,000 (down from $50k last week) awaits, along with sand,
beer, sunshine, beer, surf, beer and the obvious. CCENG is living the life WE PROMISED
OURSELVES. Whose in the right conference now?
P.S. Not happy XX is ranked No #1 in SEC. But Birminghams gotta Christmas station.
Yeah!!!!!!!!!
Radio guys think ads, voices and ratings wars and any edge one person can take from
a previous station to the next is the issue.
Talk of contempt for the SEC shall NOT be tolerated, RNR. Rule 1.001.001 of RI board.
Once a redneck, most always a redneck. They haven't totally accepted you up thar
have they? I always thought you might come back.
A radio station worth $40,000 (down from $50k last week) awaits, along with sand,
beer, sunshine, beer, surf, beer and the obvious. CCENG is living the life WE PROMISED
OURSELVES. Whose in the right conference now?
P.S. Not happy XX is ranked No #1 in SEC. But Birminghams gotta Christmas station.
Yeah!!!!!!!!!
What about being told that you have to sign a noncompete as a condition of hire? If Florida is a "right to work" state what exactly does that mean?
I'm a little weird, I think it's more important for the SEC to be on top than for the Dawgs to beat the Gators. Now when the Iron bowl comes around, I'm just looking for a good game... and afterwords I'm smart enough to keep my mouth shut to keep from getting beaten up by a fan of the loosing team.
A non-compete is a condition of you being hired? What part of the non-compete is troubling to you? Try to re-write the non-compete and submit your own contract. Discuss this with the person hiring you. If you're worth it, only offer to sign a contract your comfortable with. Take care of this up front because most of us can't afford to fight a big corporation in court even if we know we should win the case. And yes, please don't think I'm looking at a non-compete contract from a journalism industry standpoint, I'm looking at a general non-compete that I assume would cover most any industry. Tibbs might have a point, maybe there is something special about radio that I wouldn't know about, but I would assume the radio professionals could read that into the blanks.
As far a Florida being a right to work state, My understanding is that you can't be held to a non-compete if you did not receive severance pay and are going back to work in order to support yourself and your family. You can be sued, but you will win unless your former employer has proof that he has invested a substantial amount of money and/or resources in you and you had no intention of honoring your agreement to work for him or simply left for convenience or slightly better pay. Non compete are still standard in Florida but we use them as a scare tactic to try to keep an employee from screwing us over. The smarter the employee is, the less effective the contract is.
A non-compete is a condition of you being hired? What part of the non-compete is troubling to you? Try to re-write the non-compete and submit your own contract. Discuss this with the person hiring you. If you're worth it, only offer to sign a contract your comfortable with. Take care of this up front because most of us can't afford to fight a big corporation in court even if we know we should win the case. And yes, please don't think I'm looking at a non-compete contract from a journalism industry standpoint, I'm looking at a general non-compete that I assume would cover most any industry. Tibbs might have a point, maybe there is something special about radio that I wouldn't know about, but I would assume the radio professionals could read that into the blanks.
As far a Florida being a right to work state, My understanding is that you can't be held to a non-compete if you did not receive severance pay and are going back to work in order to support yourself and your family. You can be sued, but you will win unless your former employer has proof that he has invested a substantial amount of money and/or resources in you and you had no intention of honoring your agreement to work for him or simply left for convenience or slightly better pay. Non compete are still standard in Florida but we use them as a scare tactic to try to keep an employee from screwing us over. The smarter the employee is, the less effective the contract is.
A
alcapone
Guest
A non compete only holds up if it's legal in that state where the situation is going on. If not, it's illegal.
My memory of FL is that a Non-C is only valid if the two parties mutually agree on a severence package
based upon staying off the air in the same market for a specific period of time. Should either party
not agree to that, then the contrat is null and void. If either party doesn't live up to the agreement
after the fact, well, you've got another legal issue. Courts do frown on these when corporations
try to make iron clad slam downs on the little people they hire. Plus, all the bad press of radio companies
has made judge's rather angry about even dealing with them.
based upon staying off the air in the same market for a specific period of time. Should either party
not agree to that, then the contrat is null and void. If either party doesn't live up to the agreement
after the fact, well, you've got another legal issue. Courts do frown on these when corporations
try to make iron clad slam downs on the little people they hire. Plus, all the bad press of radio companies
has made judge's rather angry about even dealing with them.
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