Consultants: dim or delete the non-compete?

Subject: Consultants: dim or delete the non-compete?
From: "Hart, Geoff" <Geoff-H -at- MTL -dot- FERIC -dot- CA>
To: "TECHWR-L" <techwr-l -at- lists -dot- raycomm -dot- com>
Date: Fri, 15 Mar 2002 09:24:24 -0500

Robert Kennedy wondered: <<I'm looking at a very good consulting opportunity
that fits my background perfectly -- which also fits very few people in my
region. (The client has been looking for months for someone with my specific
background.) It's short term and lucrative, but I've been recruited for the
offer by an agency. I've been able to negotiate down a 1-year non-compete
before, but I've never been able to eliminate it... Have you ever been able
to leverage your unique skills to either diminish or delete the non-compete
clause?>>

I haven't freelanced through an agency before, so treat my comments as
theoretical; apply your own reality check rigorously.

In the agency's defence, they've found you work you might not otherwise have
been aware of, and deserve some compensation for that effort on your
behalf--a finder's fee at the very least. If you've already signed a
contract with them, then you're more or less bound to follow the terms of
that contract--"less" because you can always try to renegotiate, and it
sounds like you have a strong bargaining position. Treat them right, and
they'll be happy to continue working to find you work in the future, and
that's surely a good thing.

In your defence, it's worth noting that if you haven't signed the contract,
then nothing stops you from making a cold call on that company and selling
them your services by yourself, thereby cutting out the agency. (But note
that if _they've_ signed a contract with the agency, then the terms of their
contract may prevent them from legally hiring you.) Cutting the agency out
of the loop will certainly earn you more money, and minimize the number of
strings attached to your future work (i.e., no non-compete agreement), but
might earn you enough bad kharma to make your life miserable in future;
among other things, the agency may drop you from their list of contractors
and urge other agencies to do so too.

All that being said, why not discuss these points with your agency contact
and offer a compromise. "I'll be happy to accept this first contract via the
agency, since you deserve compensation for finding me the job, but I don't
want to sign any noncompete. If you want me to do such jobs in future--don't
forget that I'm a unique resource--I'll be happy to work on the same basis:
find me a job with a new company, and I'll do the first one under contract
to you, but with no non-compete. And, of course, where I'm just one of many
who can do the job, I'm still happy to work under the regular contract with
you. We each win, and we get to keep working together."

If they won't buy that, then you've got to decide carefully which option
works best for you, and which risks you're prepared to take.

--Geoff Hart, FERIC, Pointe-Claire, Quebec
geoff-h -at- mtl -dot- feric -dot- ca
"User's advocate" online monthly at
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