After a lull in January, non-compete inquiries to my law office and resulting consults have returned to 2011 levels. The most disturbing trend seems to be that young, ambitious individuals who have seen their pay and commissions cut feel trapped because the risk of fighting a non-compete seems so daunting. Many of these folks believe they can offer more efficient service and better prices to customers. I can’t recall an instance in which the customers committed to an exclusive relationship. These customers stand to gain from competition: This is a fact.
I represent a couple of businesses hiring employees with non-competes: speak of uncertainty. In addition to uncertainty, litigation expense can be significant, especially the way time-churning larger firms bill. Litigation can function as a tax (payable to lawyers) incurred for those businesses which hire employees with a non-compete–and now it does not always even take a non-compete. So, the fact is that non-competes are not just a matter between employer and employee, but impact customer, hiring businesses, and consumers.
Another fact: Politicians from both parties are AWOL. State Democrats are mostly clueless. The issue does not fit the interest group politics that dominate its agenda. On the other hand, Republicans get their marching orders from the chambers of commerce, which tends to represent established business interests as opposed to consumers, employees and entrepreneurs. This crowd calls itself “pro-business,” which apparently means the ability of some businesses to prevent competition so that you can protect customers from efficient and cheaper goods and services.
Final fact: South Carolina courts provide little guidance. Trial courts are ill-equipped to issue a speedy resolution of matters where delay is truly justice denied. So, employees, customers, and real job creators are left to wonder and wait. And the fact is no one knows how long.