Sometimes your employment obligations do not fully come to an end even when the employment relationship has ended. That is the case when you face post-employment restrictions on your freedom to work where you want, for whom you want, doing what you want.

A. Types of Post-Employment Restrictions
There are many different post-employment restrictions, each posing a different degree of potential difficulty for you. They include, among others:

• i.     Non-Competition restrictions – require attention
• ii.    Non-Solicitation restrictions – often problematic
• iii.   Non-Interference restrictions – depends on their wording
• iv.   Continuing Confidentiality – generally not problematic
• v.    Non-Disparagement restrictions – rarely problematic
• vi.   Continuing Cooperation obligations – rarely problematic
• vii.  No-Rehire/No Re-Apply Clause – not problematic

B. How Do These Restrictions Become Problematic? Not as You Might Expect.
Many people believe “These things are not enforceable.” Simply put, that is in error, based on a misunderstanding of the four different ways these restrictions are enforced:

1. By Your Fear (“Self Enforcement”): Some people limit their own work opportunities out of fear that if they ignore these restrictions, they will surely end up in court; we call this “self enforcement.” It is wise to be concerned about post-employment restrictions, but there is no need to be fearful. While the potential risks of cost, disruption and reputational harm are substantial, there is much you can do to reduce or even eliminate those risks.

2. By Your Next Offer Letter (“Representations Clause”): Offer letters and employment agreements often contain a clause that says, using a variety of words, “The employee represents to the new employer that he/she has not signed any agreement with any past employer that might limit his/her ability to perform the duties of this job.” This is often called a “Representations clause.”

If you are presented an offer letter or agreement containing such a clause, and you signed a Non-Compete or similar agreement(s), you have a choice to either (a) admit you did sign such an agreement, and potentially not get hired, or (b) not mention that you did so, and hope that it does not later come to light. However, if it does later come to light, it could potentially lead to your termination for dishonesty.

3. By a Mere Letter from Your Former Employer (“Postage Stamp”): It is not uncommon for former employers to enforce a post-employment restriction by means of a “first class postage stamp.” That is, by sending a letter to your next employer citing, for example, a non-compete agreement you signed, and threatening your new employer with a lawsuit for encouraging or helping you violate that agreement. Can a former employer send such a letter? Yes, and it is done quite often.

Will that result in your being asked to leave? Perhaps not, but perhaps yes, and that would leave you without a job and a two-month tenure on your resume to explain in future interviews.

4. In Court (“High Risk for All”): This route to enforcing a post-employment restriction is the least common path taken by former employers, due primarily to the fact that Paths 1, 2 and 3, above, usually suffice. And, too, because proceeding to Court is potentially risky for employers, for court proceedings are public, and have a potential risk of cost, disruption and/or reputational risk of “bad things” about them becoming entirely public.

C. Negotiate Before, When and After the Post-Employment Restriction Arises
There are four most common times a post-employment restriction may be negotiated:

• 1. When you are presented an employment agreement containing the restriction,
• 2. When you are presented with an equity– or bonus–agreement containing the restriction,
• 3. When you are presented a severance agreement containing the restriction, or
• 4. When you are engaged in a situation that might be a violation of that restriction.

In each circumstance, the restriction can be negotiated to reduce or eliminate its application – and thus risk – to you, and to your working freedom. As in all difficulties, the earlier the potential problem is addressed, the easier it is to do so with success.