Can I hire an old co=worker who has a non-compete?

UPDATED: Sep 30, 2022

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Can I hire an old co=worker who has a non-compete?

I’m about to open my own business. I want to hire an old co-worker/friend of mine but she has a non-compete. Here’s the thing – when she was first hired,she was as an independent contractor. It was then and there that she signed the noncompete. Since me being gone, she was promoted to my old position and became an employee of the business. However she never signed anything new when she got the promotion. Am I at risk for being sued by my old place of work if I were to hire her?

Asked on August 4, 2016 under Employment Labor Law, Pennsylvania


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

You are indirectly at risk. The non-compete is enforceable against her, even though she signed it initially as an independent contractor then subsequently became an employee; the change in her status does not invalidate the non-compete. Since she, not you, is the signatory to it, she, not you, could be sued by her current employer for violating the agreement--therefore, she, not you, faces direct liability. But if they sue her, they can potentially get a court order barring her from working for you; losing a key worker suddenly can obviously impact your business, which is where the "indirect" risk comes in.

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