How best to get around a non-compete clause?

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How best to get around a non-compete clause?

I hired a home health care agency to provide aides for my mother. Now, one of the aides (whom we like very much) wants to leave the agency and start her own home health care business. As part of the contract with the current agency, it says that we cannot hire one of their aides for up to a year after we terminate the agreement. How enforceable is this? If the aide incorporates, would switching from one agency to another agency get around the non-compete even if it is the same person providing the care?

Asked on June 17, 2014 under Employment Labor Law, Georgia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Non-compete clauses are completely enforceable, so long as they are not too long or too broad--so long in time or broad in scope as to prevent a person from earning a living for an unreasonably long time. What you describe is not technically a non-compete, since a non-compete is on the *employee*, not a customer of the business. Customers can be held to longer restrictions, especially if they are limited to preventing the hiring of current or former staff of the agency. From what you write, this term would seem to be reasonable and enforceable, since it all it does is preclude you from hiring an employee of theirs for one year--you can hire any other home health aide who had not worked for them. That is not much of a restriction, from a legal point of view, and is limited enough that a court would enforce it.

And no--the aide cannot get around it by working for someone else, by incorporating, by having an LLC, etc. In all those cases, since *she* would be providing the care, it would be a violation of the agreement.


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