Is my non-compete enforceable if I’m freelance?

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Is my non-compete enforceable if I’m freelance?

I am a virtual assistant that works as a freelance employee for a company. I had to sign a non-compete agreement when I started working for them and am considering leaving the company and continuing to freelance as a virtual assistant or an on-line business manager. I was wondering if my non-compete agreement that says I can’t work as a virtual assistant for 2 years can actually hold up considering I’m not a “true” employee of the company and a freelancer only.

Asked on April 12, 2011 under Employment Labor Law, Pennsylvania

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You call yourself a freelancer but in legal terms you are an independent contractor.  A non-compete agreement - or a non-competition covenant as it is called in Pennsylvania - is considered a restraint on trade and, as in many states, are not favored by the courts.  Who drafted your agreement?  If your employer did then it may be looked at by the court with much more scrutiny as the agreement is a contract and under contract law there is an assumption that the agreement is negotiated.  It may not have negotiated between the parties here.  In order to enforce non-competition clauses the courts balance the employer’s "legitimate protectable interest(s)" against the hardship imposed upon the employee by the restriction upon the employee’s ability to work.  I think that your agreement may be unreasonable to some extent under the circumstances.  You can not be denied your ability to work within your field but you can be limited to protect trade secrets etc.  Bring the agreement to an attorney in your area.  Good luck.  


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