Dealing with downsizing -- and a non-compete

  • Article by: MATT KRUMRIE , Star Tribune Sales and Marketing
  • Updated: September 12, 2011 - 12:59 PM

I've worked in various sales positions for over a decade and have been successful. However I am about to face a possible downsizing since my current company just lost a huge contract representing close to 90 percent of our current business. I signed a non-compete and confidentiality agreement when I was hired and am now worried about my rights and my future. Do I have any rights if I'm let go in a downsizing? What should I do?

Dear Matt: I've worked in various sales positions for over a decade and have been successful. However I am about to face a possible downsizing since my current company just lost a huge contract representing close to 90 percent of our current business.  I signed a non-compete and confidentiality agreement when I was hired and am now worried about my rights and my future. Do I have any rights if I'm let go in a downsizing? What should I do?

Matt says: The first thing you absolutely must do is consider contacting an employment law attorney. It may cost you some money upfront, but in the long run it will help you get through all of this, and create a better understanding of what legal rights you have or what your future may hold based on the terms of the non-compete and confidentiality agreement.

 This is no doubt a tough position to be in. I brought this scenario to the attention of Karen S. Johnston, a Twin Cities-based employment law attorney. She said being downsized does not void the terms of the non-compete or confidentiality agreement.

 "You need to have a good understanding of what the agreement says and discuss the circumstances of its execution with an attorney," said Johnston. "You should not take a job that violates the agreement and wait to be sued before getting help. The agreement may contain a term that is too long or a geographical restriction that is too broad, so there could be room for negotiation that will help you get a job. Also you may be able to get the employer to agree to waive the agreement or to consider approval of a waiver in response to a job offer. Working things out up front is always cheaper than litigation."

 The other aspect of the scenario has to do with manner in which any downsizing is handled, as you would be protected by the Older Workers Benefit Protection Act, says Johnston. Under this act, the employer is obligated to disclose certain information and to give a downsized individual time to consider severance offers.

 Besides figuring out your legal rights, now is the time to focus on the job search. Update your résumé, contact your colleagues to let them know you are looking, and start putting together a job search plan. You could also call a career coach or counselor for advice and tips if you have not done a job search for a while. Try local career coaches Catherine Byers Breet (arbez.com), Joan Runnheim Olson (pathwayscareer.com) or Karen Kodzik (cultivatingcareer.com).

Matt Krumrie is a Twin Cities freelance writer specializing in career advice.

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