Consequences of a non-competition clause?

Questioner

I quit my current job last week after 2.5 years, where I had a permanent contract. I was hired as a photographer and they knew when they hired me that I would continue doing this on the side. Now I have finally taken the step to go full-time for my own company. Logically I will continue doing the same type of photography (fashion campaigns etc.) because this has of course become my specialty, especially jewelry. Now the company wants to ban me from working with any brand that sells jewelry, you understand that I absolutely disagree with this and that this has a huge impact on me and my business. My permanent contract contains a non-compete clause and it is pretty well sealed. It seems as if I can only become a truck driver (by way of example). 🤭 However, I have done my own research and I have learned that the company must clearly state what competitors are and with arguments. This contract does not mention anything about that, only about the figures, customers and other insides that I as a photographer never know anyway. Long story short; next Monday I have a meeting with HR in which they want to discuss this. I want to go into this well prepared and preferably have the non-compete clause lapse or at least shortened. So I am looking for advice on how I can best approach this and where my chances still lie. After all, I am just a photographer and certainly have no influence on the rest of the company. Side note: In the past year, several direct colleagues have quit and also started working for similar companies, as an employee or as a freelancer. Someone even started a shop with clothes and jewelry. They had the same permanent contract as me and nothing was ever done with it. So now it is more a case of envy and they are a bit offended. By the way, she wanted to continue booking me as a freelancer, because they were 'so' satisfied with me. This is what the contract says: Article 12: Non-competition clause 12.1 Without prior written permission from M., it is not permitted to establish a company, a to have an employment relationship elsewhere or an activity, in any capacity whatsoever, which is the same, similar or is related to that of M. and/or its affiliated companies. This applies to both during the employment relationship and for one year after its end. 12.2 The provision included in paragraph 1 of this article is, as far as M. is concerned, not applicable due to important business interests necessary, since you will have access to the agreed position information from M. and companies affiliated with M. about: - the current and future positioning of M. in the market; - products and product development; - profit margins, turnover, costs and/or other financial figures; - existing and potential future customers and other relations (including leads and prospects); - the way in which M. wants to distinguish itself from competitors; ................................................ Article 15: Fine 15.1 In the event of any violation of: - Article 9: Secondary activities; - Article 10: Confidentiality; - Article 11: Non-competition clause; - Article 12: Relationship clause; - Article 13: Intellectual property rights; you will receive, to the extent necessary in deviation from the provisions of Article 7:650 paragraphs 3, 4 and 5 of the Dutch Civil Code, per violation an immediately enforceable fine for the benefit of M. This fine amounts to per violation €10,000 at once, increased by an amount of €1,000 per day for each day (or part thereof) that the violation continues without prior notice or notice of default required. In addition, M. has the right to claim full compensation in lieu of a fine and the right to force you to stop the violation immediately.

Lawyer

I understand that this is a difficult situation for you. A non-compete clause can indeed significantly limit your options for starting your own business. However, it is important to know that a non-compete clause must meet strict requirements in order to be valid. First of all, as you yourself indicated, the company must demonstrate the important business or service interest that makes a non-compete clause necessary. It seems that they do claim this in the agreement, but the question is to what extent their arguments are tenable in this case. Secondly, the clause must not be unreasonably onerous. That is, it must not unreasonably restrict your ability to work elsewhere or start your own business after the end of your employment. It seems that this clause is formulated very broadly and could be seen as unreasonably onerous, as it almost seems to prohibit you from working in your field. Your negotiating position depends very much on the precise facts and circumstances. You can argue that your access to company information was very limited, given your position. The argument that there were other colleagues who started working under the same contract at similar companies can also work in your favor. This could show that the company interest is not as important as the employer claims. I recommend that you seek legal advice before your interview so that you know exactly where you stand and how to best present your objections to the non-compete clause. A professional legal or employment law attorney can help you strengthen your arguments and evaluate your options. Keep in mind that it is ultimately up to a judge to determine whether a non-compete clause is valid or not. In addition, you could possibly start negotiations with your employer to agree on a possible buyout sum for the non-compete clause or to have the clause modified or removed. This is where I think professional legal support can be very valuable. ---------------- Stichting Rechtswinkel.nl is a national organization with students and volunteers. The above advice is based on limited information and may be incomplete or even incorrect for your situation. Always consult a lawyer or attorney for your further steps. Read disclaimer: https://rechtswinkel.nl/disclaimer I would like to invite you to rate the above answer so that we can learn from your response.