Monday, December 28, 2009

Disspelling the "Right-to-Work" Myth

Since about one-half my practice involves the representation of employees (rather than companies), I consult frequently with individual clients over the enforceability or applicability of their existing non-compete agreements. The advice I render often times deals with dispelling what I call "Youth Soccer Myths." The conversation usually starts along the lines of the following: "a friend of mine told me at my daughter's soccer game that non-competes were never enforceable." Or some variant.

One myth that I have had to address many times concerns the concept of "right-to-work." Many clients tell me that they don't think a non-compete can be enforced because "I live in a right-to-work state."

It is true that several states (a minority, actually) are "right-to-work", but this simply refers to a person's ability to work regardless of membership status in a labor organization. "Right-to-work" laws are common in the South and West, but rare in the Midwest and Northeast. The notion of "right-to-work" is perhaps an understandable misnomer, given that non-competes are restraints of trade. But whether a state is "right-to-work" or not simply has no bearing on whether non-compete covenants are enforceable in that state.

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