I have been working for a company for several years and it’s not working out. I am being given unreasonable deadlines, my superiors are breathing down my neck for results and they are treating me like dirt, but they also are not giving me the resources I need to get the job done despite numerous requests on my part. The work that I do is highly technical and I’m sure there would be a huge market for my services as an independent consultant. The problem is, I signed an agreement with my current employer saying I won’t compete with them for a period of one year after my employment ends, unless they terminate me, in which case I am free to do what I want. Another clause in the agreement says that if I am terminated for any reason I cannot contact any of their clients. Do I stay or do I go?
One thing stands out loud and clear here: Under no circumstances should you quit your current job until you have something else lined up. Your employer doesn’t want you around any more than you want to stay in your dead-end position. But if they do the honest thing and fire you outright, two very bad things (for them) happen: They will be releasing you from your non-compete agreement and they will have to shell out money when you file for unemployment compensation. They are making your life so miserable that they know sooner or later you will “break” and quit — what we lawyers call “constructive termination.” When you finally walk out the door, they will break out the champagne. As a “quitter,” you are no longer entitled to unemployment compensation, and you are stuck with your two-year non-compete.
Assuming any attempt on your part to negotiate with your employer will fall on deaf ears, you will need to start playing the same game your employer has been playing with you. You will have to make your employer’s life so miserable that they end up firing you. Slow down on the job, take longer lunch breaks, don’t respond to telephone calls and e-mails until you absolutely have to and when they demand performance on an unreasonable deadline, start whining, complaining and making unreasonable demands of your own for resources you know they can’t or won’t give you. This will be unpleasant, for both you and your employer, but two positive things will result — they will understand (eventually) that you are not willing to go quietly and they will be more likely to fire you or otherwise allow you to leave gracefully without restrictions on your future activities.
You should not disobey any direct orders or do anything dishonest. Doing so might enable them to terminate you “for good cause.” You should just do the bare minimum amount of work to justify your paychecks.
Now that you have lots more free time on your hands, use it wisely. Hire a lawyer to form a limited liability company (L.L.C.) for your new consulting business and make sure your name is not listed as an owner or manager of the L.L.C. on any public database (there are legal ways to do that, and your attorney will explain them to you). Then — here you will need to proceed very carefully — begin contacting potential clients for your consulting business, making absolutely sure they have never dealt with your employer before. Even if your employer terminates you, you won’t be allowed to solicit their clients for six months. During that six-month period, you will have to rely 100 percent on clients who are not, and have never been, clients of your employer. If you are not sure whether a particular client has worked with your employer in the past, do not contact that client.
Once you have lined up work from two or more potential clients, you still must not quit your day job (remember the one-year non-compete agreement), but you are now in a much stronger bargaining position to demand that your employer release you from bondage in exchange for your promise not to claim unemployment compensation (you won’t need it now), contact their clients (at least for, let’s say, six months), abuse their trade secrets or sue them.