Know Your Rights and Protect Yourself: Noncompetes and Employment Issues with Legal Expert Tom Spiggle
I started this series– Curated Career Conversations– because I’ve found that job seekers– at all levels– are confused about the job search process, especially when it comes to navigating the legal aspects, which can often be complex and overwhelming.
Joining us today for our Curated Career Conversation is Tom Spiggle, a highly accomplished attorney and founder of The Spiggle Law Firm. Tom specializes in protecting the rights of employees who have been unfairly terminated or fear they might be. Tom is also a senior contributor for Forbes and the author of the groundbreaking book You’re Pregnant, You’re Fired. He holds a Juris Doctor from Georgetown University Law Center and both a Master’s and Bachelor’s degree from the University of North Carolina.
I’m excited to share my conversation with Tom. We explore the intricacies of noncompete agreements, the importance of seeking legal counsel, and the delicate balance between protecting your reputation and asserting your rights. Whether you’re an executive facing a career transition, concerned about potential termination, or simply seeking to understand your employment rights better, this interview offers invaluable insights and practical advice.
Let’s get started…
Sarah Johnston (SJ): Tom, you’ve spent over 20 years advocating for workers’ rights. Can you share what shaped your approach to employment law and why you decided to go into it?
Tom Spiggle (Tom): When I opened my firm, I was a federal prosecutor handling sex offense and domestic violence cases. I really just hate bullies. I had an interest in employment law, but I was drawn to the need that employees—even very educated and advanced ones—have in realizing their employment rights and protecting their careers. The law in this area is very complicated; even as an attorney, if you don’t follow it closely, it’s easy to miss the ins and outs. I realized that people who are well-educated and advanced in their specific fields can feel lost when it comes to these issues, and I wanted to help them.
Noncompete Agreements
In January 2023, the Federal Trade Commission (FTC) proposed a sweeping ban on noncompete clauses, arguing that they “suppress wages and hinder competition by restricting workers’ ability to change jobs and pursue better opportunities.” After a period of public comment and debate, the FTC finalized this rule in April 2024, broadening its scope to prohibit virtually all noncompete agreements. While the rule was initially set to take effect in September 2024, a federal court has temporarily blocked its enforcement. The FTC is currently appealing this decision, leaving the future of the ban uncertain. This legal battle highlights the significant challenges and opposition the FTC faces in its efforts to eliminate noncompete clauses and promote worker mobility.
SJ: There is such a need for attorneys like you. I talk to people every day who are bound by documents they signed that they didn’t realize they were signing. Speaking of that, Tom, I was talking to a job seeker recently who shared that he was laid off back in 2020– when half the country was looking for a job– it took him longer than anticipated to find a new role. By the time he landed a job, he was completely mentally fried. The nice HR lady gave him an on-boarding packet with things to sign. He didn’t realize that he was signing his life away at the time. Now, he’s in a job that he can’t stand but has handcuffs in the form of a noncompete agreement. How common is this?
Tom: It is extremely common. Companies have long used noncompete agreements, but they have become more aggressive over the past decade, extending beyond just C-suite level folks. Some companies are having service personnel sign noncompetes. As you mentioned, for many, it has become part of the boilerplate agreements that people sign at the beginning of their employment. These are the days when you’re just happy to have the job. It’s like when you get a mortgage—you have a stack of paperwork, and you’re just signing away. A lot of people sign noncompetes without realizing what they’re agreeing to, often not aware until it comes back to bite them later. Companies sometimes use these agreements without much thought about whether they really need them or if they plan to enforce them, but they still have employees go ahead and sign them.
According to a 2019 report by the Economic Policy Institute, nearly half (49%) of private-sector workers are subject to noncompete agreements. The rates can vary by industry, with higher concentrations in sectors like technology, finance, and healthcare.
SJ: What advice would you give to an executive considering a job offer that comes with a noncompete agreement? Have you seen companies drop the agreement as part of the negotiation process?
Tom: Yes, absolutely. One advantage that executive-level employees have is that you have some leverage in the negotiation process. They can negotiate. Lower-level employees may not have the same leverage, but if you’re an executive, then you probably have some leverage with those kinds of agreements. Don’t be afraid to negotiate a noncompete just like you would negotiate salary or benefits. Sometimes companies will pare them down significantly or even drop them. The truth is a lot of times the company’s lawyer has told them they need to include these in their employee agreements, but they haven’t given much thought to if it’s really necessary for this position. Even if they aren’t willing to drop it, they may be willing to pare it down. It is a contract between you and your employer – so within reason, it can say whatever is agreed upon. This could be an opportunity to pare down geographic reach, jobs the company will consider as competition, the length of time it will apply, and most importantly, if they are going to hold you to a noncompete, then they are going to pay you. This is not uncommon to say, “You are going to put me on the bench for a year to protect whatever interest you have, that’s fine, but you are going to pay me.” Then you are getting paid for a year or however long the noncompete terms are or until they relinquish the noncompete.
SJ: I have heard as a rule of thumb that if you are making over $150 or 200K, then you should always have an employment lawyer review your contract or employment terms before you move forward and sign anything. Would you agree with that advice?
Tom: I think that is absolutely right. I am biased in this regard, but I think it is beneficial. Even for folks under that salary range, you don’t have to retain an attorney; it is not a litigation matter, you can just hire someone hourly. People in my field do this all the time. You can have someone look over the paperwork and give you some advice. It doesn’t mean you are lawyering up or necessarily having someone help you with the negotiations in a front-facing role, although sometimes this does happen with really high-level folks. Noncompetes can be very complicated.
They are creatures of state law and vary from state to state. There are probably other agreements—non-solicitation, clawback agreements, stock options—any number of tripwires. You might willingly sign them; there might not be anything to worry about, but paying a lawyer for an hour or so of time will give you a lot of return on investment for that.
Legal Action Against Noncompetes
SJ: A resume client of mine is in a situation where she has a very restrictive noncompete agreement that she feels is unfair and too restrictive. She is considering hiring a lawyer to fight the mileage restriction in her noncompete. Are you seeing job seekers win in these situations? Is it worth the effort and energy to fight these?
Tom: This is a great question. The short answer is yes. You can win these—employees win these all the time in court. States vary on this, so it is important to find someone to advise you in your state. Courts do not like noncompetes; they want people to be able to work. If these agreements are too broad in geographic reach, time, or scope, a court will strike them down.
Read more: Bloomberg Law’s 50-State Survey of Noncompete Laws
I would take a step back and remember that these can be negotiated, even after you sign them. It is just an agreement between you and the company. The company has to enforce it if it’s going to have any bite to it. A lot of the time what we see is, again, companies are willing to negotiate these. They want their interests protected. You need to use your own judgment about this, but a lot of times, if you don’t surprise your company and if you are upfront and transparent—tell them, “I am looking at this other job or other company, and it is one mile within my geographic restriction, is this something we can negotiate?”
A lot of times the company will amend the terms. The company has to pay a lawyer too to fight these. They can’t just have a court issue an injunction—they have to hire a lawyer to go to court, and it is not inexpensive for either side. You have some leverage right off the bat by just saying, “Can we work this out?” Again, the company has to hire a lawyer, and the first step is they send some kind of cease and desist letter.
A lot of companies will saber rattle without having any intention of taking this to court. Higher-level folks need to watch out because there can be more skin in the game, and companies might be more willing to pony up and hire a lawyer to take you to court. But know these are things that you can negotiate with the company even after you have signed them and after you have been terminated or left the job.
Pitfalls in Transitions
SJ: Executives often face unique challenges when dealing with employment issues. What are some other common legal pitfalls that high-level professionals should be aware of, especially when transitioning between roles?
Tom: Executives have an understandable concern about reputation. You spent a lot of time and money investing in your career, and the last thing you want to do is have that in jeopardy if you are transitioning. That doesn’t mean that you can’t enforce your employment rights. It’s important for folks to remember that, of course, there are cases that go to court and are published about in the paper and part of the public record, and anyone can pull the pleadings, and that is something to consider. But usually, there is a lot that happens in situations where you are trying to enforce your rights; there is a lot that happens before it becomes public. Even if you have a matter that has to be filed with an administrative agency like the EEOC and DOL, that is not public in the same way.
Read more: Retaliation claims are the most common type of charge filed with the EEOC.
High-level executives often have these matters get resolved outside of court. The company also doesn’t want to have this talked about, so they often will have non-disparagement agreements that bind both sides in what they can say. It’s understandable that executives and companies are concerned about their reputations. They don’t want to have a big public fight that follows them around for their career. Most cases do not end up in a public fight.
Research suggests that noncompetes can hinder employee mobility and entrepreneurship. A 2014 study in the Journal of Law and Economics by Evan Starr, J.J. Prescott, and Norman Bishara found that noncompetes reduce worker mobility by 13% to 21%.
SJ: That’s a really tough situation, Tom. I speak with many job seekers who feel trapped between a rock and a hard place. They’re facing these restrictive agreements, and even when they feel wronged, they hesitate to take action. They worry that any kind of legal challenge, even if justified, could tarnish their reputation and make them less desirable to future employers. Some even feel pressured to uproot their families and move just to avoid a public conflict, even when they believe the company was in the wrong. It’s a difficult balance to strike.
Navigating Job Termination
SJ: For executives who may be facing or fearing termination, what are the first steps they should take to protect their rights and ensure a fair outcome?
Tom: Find yourself a lawyer for an hour to advise you. I think it’s important to work with a career professional as well. An attorney can help you with immediate, backward-facing issues, but you also need a career professional who can help you look at that next step. If you feel confident about that new and better job, then you can help contain some of the issues you are facing now.
If you think you are going to be terminated, or you’re getting that feeling, here’s one piece of advice to give you more leverage. A lot of times, executives have been putting up with something for a long time—a sexist boss, unequal pay, a hostile work environment, a disability that they are afraid to disclose but is apparent. If you raise these issues with your company, you give yourself a lot more leverage on the way out the door. I am not talking about a lawsuit. It’s going to your company and saying, “Hey, I believe I am a victim and have been subject to unequal pay, or a hostile work environment,” whatever it may be. Not only do you have a claim for the underlying discrimination, but now if the company does something to you, then you have a retaliation claim. Many employment laws have anti-retaliation provisions. If you raise the issues and then the company takes action, then you have the underlying claim of harassment and then you have the claim of retaliation. You can lose on the claim of, let’s say, sexual harassment, but still win on the retaliation. Courts are pretty clear that if you have a good faith belief in raising these issues, the company can’t take action against you.
Most people don’t want to end up in front of a jury, but if you do, juries hate retaliation issues. There was a recent judgment for a UPS worker, a non-executive, a $238 million judgment against the company because, in large part, of evidence of egregious retaliation. Company attorneys know this too, and company attorneys, when they are evaluating it, ask what would happen if I ended up in front of a jury. Know that if you raise these issues, you give yourself a lot of leverage. It is very important that the claim is a good faith belief and something you really believe to be true. I am NOT telling people to make stuff up; it has to be true. But if you have been sitting on something for a long time, this might be the time to bring it up.
SJ: I often work with people who keep an eye on WARN notices. For those who aren’t familiar, some states require companies to publicly disclose planned layoffs that affect a significant number of employees. So, let’s say you’re an employee, you see your company has filed one of these notices, and you’re worried your department might be on the chopping block. What steps can you take to prepare for a potential layoff?
Tom: That’s a smart move to be aware of those notices. And when you see one, it’s definitely time to be proactive. First things first, go back to the paperwork you signed when you started the job. Do you have a noncompete? A non-solicitation agreement? Especially if you’re an executive, is there a severance package outlined in your contract? In a big layoff situation, you can’t rely on HR to know the specifics of what you negotiated.
This is also a great time to connect with a career coach and get your resume and LinkedIn profile in top shape. And it’s never a bad idea to have a lawyer you trust who can review your documents and provide advice behind the scenes. Remember, you can often negotiate your severance package on the way out the door, especially as an executive. Don’t just jump at the first offer they give you.
SJ: We’ve talked a lot already about noncompete agreements. One more final question on the subject. The FTC’s ban on noncompete agreements was recently blocked by a federal judge in Texas. What is your crystal ball saying will happen with NCAs? Will they be enforceable in the future?
Tom: I’m not a fan of noncompetes, and I’d love to see the FTC ban go into effect, but I don’t think that will happen. We’ve already seen this court in Texas issue a nationwide injunction, and several plaintiffs and interest groups have challenged it in other states. I think this will ultimately end up in the Supreme Court, much like other challenges to administrative agencies like the FTC. The Supreme Court has been clear that they’re not supportive of broad actions by agencies like the FTC, and this ban is a significant one with a potentially huge impact on the economy. I suspect we’ll end up with a circuit split, where one court says the FTC was within its rights, and another circuit disagrees. These situations are usually resolved by the Supreme Court, and I believe they’ll have the final say and strike this down.
However, the Supreme Court has surprised us on these types of issues before. There was a case with the Consumer Financial Protection Bureau, where many people thought the court would strike down its structure, but they didn’t. So, there’s a chance the court sends this back and allows the ban to be enforceable. But if I were a betting man, I’d bet the FTC rule will not go into effect.
This brings us back to the beginning of our discussion. Noncompetes are a matter of state law. You can fight them, negotiate the agreements, and you can beat your employer in state court. You still have those rights now.
About Tom Spiggle
SJ: Tom is an author, and I’d like to recommend his two best-selling books. First, “Fired or Afraid That You Might Be,” an easy read with great content for those of you navigating some tough issues. He also wrote “You’re Pregnant? You’re Fired!: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.” Tom, what prompted you to write these books?
Tom: When I wrote the first book, I had clients coming into my office—well-educated, high up in their careers—who were pregnant or caregivers, and they were having a trying time. They felt lost and unsure of their rights in these situations. Employment law is very, very complicated. It’s like an interlocking jigsaw puzzle of different protections. I wrote the books to provide the kind of practical advice I’d give in a consultation—the real brass tacks. How do you, as an educated consumer, evaluate your employment law rights? I wanted to give a real-world perspective, not just about legal claims, but what it actually means for you and your career to pursue those claims.
Many thanks to Tom for generously sharing his expertise and insights on these critical employment law issues. His advice provides invaluable guidance for executives and high-level professionals navigating the complexities of the modern workplace. Remember, knowledge is power. By understanding your rights and seeking expert advice when needed, you can confidently navigate your career path and protect your future.
To learn more from Tom, be sure to check out his best-selling books, “Fired or Afraid That You Might Be” and “You’re Pregnant? You’re Fired!: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.” And for ongoing actionable employment law advice, follow Tom on LinkedIn.
