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How Should Real Estate Photographers Deal with Non-Compete Agreements?

February 5th, 2017

NonCompeteAgreementsI had two questions on non-compete agreements last week. Both readers asked for examples of non-compete agreements as if there is some right way to write one.

Over the years everyone I’ve talked to about non-compete agreements they’ve signed have found themselves in a disastrous situation after wanting to work on their own.

My advice on non-compete agreements or clauses is:

  1. Avoid getting involved in non-compete agreements if at all possible.
  2. Check out the laws in your state on non-compete agreements.
  3. If you think you must sign a non-compete agreement be totally honest with your employer and negotiate an agreement that is reasonable. There is no right way to do it. The terms are negotiable.

Here are some facts that bear on this issue:

  1. Laws that regulate non-compete agreements vary widely country to country and state to state. In the US non-compete agreements are regulated by state laws so you have to research the situation in your own state. In California, non-compete agreements are illegal and unenforceable except in very limited situations. Other states have laws that make non-compete agreements easier to enforce. It would probably be worthwhile to get some local legal advice.
  2. In most locations, a non-compete agreement only applies to  an employee, not to an independent contractor. If you really are an independent contractor non-compete agreements may not apply to you.
  3. Courts generally insist that non-compete agreements be reasonable to be enforceable.

What is your experience with non-compete agreements?

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8 Responses to “How Should Real Estate Photographers Deal with Non-Compete Agreements?”

  • I’m mysterified- Why would any RE photographer be looking at a non-compete agreement?

    But as stated above, non-compete agreements are illegal in many states or extremely narrowly defined. I was involved in a non-compete lawsuit about 15 years ago when I changed jobs and took a co-worker with me. The old company sued me and my new employer quoting an obscure and really vague non-compete clause in their employee handbook. The judge asked one question- do the two employers compete in the same field? The answer was no and the judge dismissed the case and awarded me and the new employer court and attorney costs. He explained further that even if the employers were competitors, the job descriptions would have to be identical to even be considered.

  • @Stephen – The reason is that many tour companies (or similar companies) hire photographers to shoot for them in a local area and want to prevent them from quitting to become independent and continuing to shoot for their customers.

  • Some courts will also consider the level of pay when hearing non-compete suits. If you are only making $15hr, a judge may throw the case out. As Larry highlights, laws vary from state to state and country by country and you don’t want to get into the situation in the first place. It doesn’t matter what McDonald’s makes you sign, they can’t take you to court on a non-compete clause if you take a job flipping burgers at Five Guys.

    There is nothing that says you cannot make changes to any contract you are handed. I’ve found that most companies will not allow you to make changes since they overpaid some lawyer to cut and paste the contract for them but it doesn’t hurt to try lining things out. If the company isn’t going to work with you maybe you shouldn’t be considering working for them. On several occasions where I crossed out some offensive paragraphs in a contract and the company rejected my changes, they didn’t last long anyway. If you want to be treated as a professional, don’t sign up to be a slave. It might be expedient to just accept whatever is presented to you for a job that you are taking to get by, but when it’s position you are attempting to make a career of, get it right up front.

  • Curious to know who it was who was asking about non compete agreements? Wouldn’t be a UK company by any chance would it 😉

  • @peter – No. Both questions were from photographers in the US. Sounds like you have the same issues in the UK.

  • We are a company that DOES NOT make our photographers sign a non-compete agreement because we want our photographers to grow with us and some eventually move on to other cities and bring our method along with them as we expand to that city.

  • I was one of the company owners that asked the question. I agree with Joseph in wanting people to grow but what prevents the photographers that are 1099 sub-contractors from soliciting your clients? That is what I would try to prevent if possible. Of course, we do everything to encourage loyalty, however, this type of thing does happen. Additionally, an agreement also prevents any 1099 from revealing “trade secrets.” As a Realtor, as well, I am required to sign this type of agreement with my Broker, we are all 1099. Therefore, I am making that leap in thinking this may be applicable to real estate photography. Thank you all for your input, this site is amazing and filled with awesome insight from the members.

  • @Jeanne – I see you are in Illinois. Better check out the recent (August 2016) Illinois freedom to work act. See: http://www.laboremploymentlawblog.com/2016/09/articles/non-competition-covenants/illinois-brings-down-the-hammer-on-non-compete-agreements/

    This new law has a significant impact on NC enforceability in ILL.

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