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First the normal disclaimer: without looking at the contract NO ONE can tell you what the deal with HIS non-compete is.
But usually... non-competes are limited by two factors 1) location and 2) time. Generally location will be a radius around where his current company is located... either that city or within 50 miles or whatever. Time is generally within x months of leaving... it does not usually expire after working at a company for so long. So it might say something like, Mr. KJPugs cannot work in a company doing substantially the same job (there should be some definition of what is covered here) within 50 miles of whoville for at least 24 months after leaving The Company.
So I guess there are three things he should probably look for.
1) what is the job he has agreed not to take?
2) where has he agreed not to work?
3) for how long after he leaves?
If all three of those factors are against him I'd say he maybe has two options. The first (best) option is to take his contract to a lawyer to see if there are any loopholes. If he's not willing to do that, and he believes that he'd be violating his contract to go work for company B, a last resort might be to level with his bosses. Are they good people? If they really NEVER compete for jobs, might they be okay letting him move on? They have to know he won't work for them forever right?
CorgiTales gave a very good and thorough answer, and I echo all of that plus her disclaimer (and add the disclaimer that I'm obviously not your lawyer). I'll just expand a little bit on her answer.
Sometimes employers write non-compete agreements in ways that are overly broad, knowing they wouldn't actually hold up. Like, they might say the employee can never engage in this type of work again anywhere in the country. I don't think any court would uphold something that broad, but an employee just reading it without consulting a lawyer might think it could actually be applied in that way.
So basically, what I'm saying is that even when you find and read the non-compete, even if it seems like it would cover his new job because it's so broad, you should still see a lawyer to ask about how it would actually be applied.
Also, somewhat random question: why does he have to sneak around to look for the agreement in his work file? Does he not want his employers to know he's looking at other jobs? Because if he's at all open to it, I would also agree with CorgiTales's advice to talk to his employers and see if they would be flexible (but of course get anything they agree to in writing!).
I agree with the above posters. He may have a way out/or arund the non-compete clause if overly restrictive and leaves him with no options for employment.
I would just ask his employers for a copy of the agreement. Then sit down with them and discuss the matter. Everyone has given very sound advice.
Ok all- here's the issue. He doesn't have a copy. He doesn't think they ever GAVE him one. It was a long time ago. He asked the gals in the office but they said his files are locked and need a boss's key to open.
If he was open about looking for a new job things wouldn't be good for him. They have a very blue-collar environment there and it's a family company. I doubt they could fire him over it but it would make working miserable- and what if this opportunity doesn't work out? Jobs in his industry/talents are rare so it's not like he could go find a bunch more. He'd be treated badly and hate his job even more. The only issue is the new job wants to know about it next time they talk... so it can't be like a they-make-an-offer and then he asks for it thing. This new company doesn't want to mess around with a lawsuit.
He also can't go to an HR or legal person who would be confidential because they don't have one. They have three admin ladies. He doesn't trust that any of them would keep their mouths shut.
Can any of you think of ANY way that he could ask for that paperwork (I guess all his original stuff, like W-9?) without getting them suspicious. He LOVES his coworkers but just wants to advance his career, and doesn't want to get on their bad sides. What possible reasons besides LOOKING FOR A NEW JOB could there be to ask for these files?
Just bumping this since me and hubby don't know what to do :( Thanks guys for the great advice thus far... can't wait to figure out a way to get the non-compete copy so we can use your advice and see what it says.
It sounds like your husband is in a very similar work environment to my own.
I'm assuming everyone received the same non-compete. Is there anyone he's close with who might have a copy of theirs he can look at?
Hmm, that's really tough. I honestly can't think of any reason he could give. Bree72 has a good idea of asking other employees. Or could he just say that with the new(ish) marriage he's trying to get all his files in order and wants to get copies of his work files? It's kind of a lame excuse, but I can't think of anything else.
The other thing I noticed from your second post is that you said you doubt they could fire him for looking at other jobs. Just to warn you, unless there's an employment contract, I assume he's an at-will employee which means they can fire him for any reason (unless it's a discriminatory reason, like his race, etc.). So if they wanted to be really nasty, they could possibly fire him for it. Not to be a Debbie Downer, just wanted to let you know.
Just one more little thing to add... IF they did fire him it MIGHT solve the problem. Once again-- he really needs to look at that contract (and ideally have a lawyer look at it). But sometimes noncompetes only apply if an employee left voluntarily.
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My husband applied for an awesome job with a company that's similar to his (he's in parking lot work (striping, signs, etc) and this job is in paving- so there's overlap, but they're in different cities and have never bid against each other- but would go to some of the same conventions and have some similar connections.) We're trying to move to this other city and it would be a great "in." My husband has worked at his job for five years and worked his way up- he's now bringing in 30% of their total profit! He's doing great work- but is frustrated with his job (and has been for a while) because there's no where left to go as far as "moving up." The only people above him are the owners (brothers, aka his boss and then the other bro is the head of the office-side department) and there's no way he'd ever make owner. It's been a family owned business forever. His salary isn't what it should be- most people in other companies like his, doing what he does, A) make a better salary B) get higher bonus percentages and C) have a company car (he doesn't, so he's already run one car into the ground (he drives for work 80% of the day) and has over 27k on our NEW car we bought in April.)
This job would change our lives and give him the opportunity to succeed and feel excited about work again. BUT- he signed a non-compete. Five years ago! He is trying to find it but he's moved probably three times since starting the job, so he's not sure where he has it. He's going to try to stealth-ly look at his work files. But my question really is- what's with the non-competes? Do most say a time frame on them? I understand they don't want company A hiring Bob, training him, then having Company B snatch him up after a year - because then Company A basically paid to train Company B's employee. This company is in a different city, but yes there is some overlap, but it's been FIVE YEARS. Is he NEVER supposed to move on with his career? Does he have to completely change careers in order to leave? The company that interviewed him yesterday mentioned he needed to look into his non-compete because they're a national company and don't want to get involved in a lawsuit. I don't blame them! Wahh. Any personal experience/advice?