A couple of weeks ago I riffed on how the wisdom of asking questions about a non-compete depends on who's asking... and who's listening. My point was the reaction to questions on a non-complete is based on a sliding scale of how talented you are, and how the HR Pro fielding your question views the world.
One of the reasons I blog is that the reactions I get from my posts help me learn and get best practices from my readers, many of who are obviously pretty talented in what they do within the Talent/HR game.
Case in point: This description of "how to" talk to new employees wary of signing a non-compete, sent from a long time VP of HR reader of the Capitalist
Read up and learn, kids:
"I usually start off explaining that the non-compete is one of the requirements for hire, I will not waive the requirement but I am open to answering any and all questions you may have. I also tell them that I am more than willing to cover this with them section by section explaining the intent and meaning. My practice has been to be very open about what they won’t like, I like to raise the issues so that they open up to me about what they are thinking. In my experience if you don’t do that, they will have their sister's attorney friend review it and get them agitated about how we are holding them hostage.
I always explain the non-compete means the company is committed to investing in you, the new employee. This investment will make you a better you. We want your success to translate into company success. As you gain experience and knowledge in our business, it is normal that good people will attract the attention of companies that we compete with.
We don’t want you to leave and take your knowledge and understanding of our strategies to a competitor and use it to take business away from us, putting at risk all of the employees who rely on us for their livelihood. We have had former employees leave our business and go to a competitor and steal business away from us using their knowledge of pricing, terms, service and their relationships. When we say we invest in you, we are going to (if this is a customer-based position) introduce you to customers, pay your expenses as you develop the relationship, provide support to service the customer and in short, do what we can to ensure that you as the face of the company be presented in the best light. That is the investment we are making and trying to protect. In return, we are going to pay you well, invest in your growth, and reward and recognize you as you grow.
Invariably they always say "this agreement is so one-sided, what am I getting". I then say, well beside an offer of employment with a great company, yada, yada, the document is one-sided (I always say that I am not ashamed to say this) because we take the protection of our business seriously. As a smart person, would you want to work for a company that did not do what it could to protect itself?
If I want to “flatter” them some more, I say (which is the truth) that not everyone we hire is asked to sign a non-compete.
The non-compete does not prevent you from leaving us and going to work, it only prevents you from going to a competitor, and even then, it doesn’t prevent you from going to work for a competitor in a different role than you currently have.
To be honest, I have only had a couple people pass on an offer because they would not sign a non-compete. The hiring managers usually try to get their bosses up the chain to allow an exception. I have not had one instance where I have been overruled, because I typically remind them to think about why the candidate doesn’t want to sign the agreement. Either they don’t want to commit, or they have had a bad experience in the past (which means they bailed on their company to go to competition), or they are paranoid, which is a personality trait that cannot lead to good things.
The real test of non-competes is to implement them to all current employees. That is where the real fun and games are. All the senior guys are gung-ho in the beginning to get everyone signed up. At least until you tell them that it isn’t optional, meaning, it’s a condition of continued employment, meaning, if they don’t sign, we have to terminate."
BAM! I can't provide you with a better how-to manual on walking employees through a non-compete than that. Special thanks to "John", who allowed me to publish as long as I promised not to use his real name.
If John was an entertainer, he'd drop his microphone for dramatic effect after sharing that knowledge, like Randy Watson, of the band Sexual Chocolate, leaving the stage in Coming to America. Don't know what I'm talking about, watch the clip below from the Eddie Murphy classic. Fast forward to 2:05 in the clip if you're in a hurry...