Non-Compete Agreements: Disagreeable

I hear from massage therapists many times that they have been asked to sign a non-compete agreement when accepting employment. Here’s my take on that: There are enough aching bodies and stressed-out people to go around.

I have a decent-sized staff of 14, and I have never asked a single soul to sign a non-compete. Most of my staff members have been with me for years, and I am certain if one of them left, a certain amount of people would follow them out the door. It has been a very rare occurrence for me to lose a staff member, and when I have, and someone calls for them, I say “Lisa has opened her own business located at so-and-so.”  To do otherwise isn’t going to endear me to any clients. They’d eventually find her anyway, and their opinion of me would go down if I bad-mouthed her for leaving or said anything negative about her departure.

Fortunately, my business is not built on one person’s ability, other than my own ability to hold it all together. I would no more try to prevent someone from striking out on their own, or trying to better their circumstances in any way, any more than I would cut off my nose to spite my face.

I pride myself in being a good person to work for. My staff members are paid above the average. They are all independent contractors…they come and go as they please. I don’t expect anyone to sit around, unpaid, while they wait for clients who may or may not materialize. I don’t expect them to scrub the toilet. My expectations of my staff members are that they act ethically and professionally and that they put the client first, give great service, and act like team players. It’s very rare that I’ve been disappointed. I have people standing in line that would like to work in my clinic. No one has ever left me without working a notice.

When it comes to non-compete agreements, Dale Atkinson, internationally-known attorney who represents the FSMTB, put it this way at last year’s Federation meeting: if an employer asks you to sign a non-compete agreement, go ahead. It won’t stand up in court unless you happen to be the VP of Massage Envy who is privy to company secrets. When it comes to the average massage therapist, it’s just a blatant attempt to restrict free enterprise, and it won’t hold up.

I believe people have the right to work where they choose. And yes, I have spent money to advertise my staff members and done marketing for them…but in spite of that, I can’t visualize myself possessing the type of professional jealousy that would make me ask a therapist to sign a paper that virtually says they can’t practice unless it’s in my place of business or far enough away that it is no longer competition. What’s the matter with people? Competition is a healthy thing. Trying to tell someone that they can’t work unless they work for you is contrary to the principles of entrepreneurship. To me, the message is “I’m so insecure in my own ability to maintain a decent business that I wouldn’t want you to compete against me.”

I suggest that instead of having non-compete agreements that aren’t going to fly anyway, employers should provide a work environment that attracts quality people. When a spa or clinic has a revolving door of people coming in and out, the problem is usually the management, not the staff, and most of the time the owner is in denial. Treat people well and you won’t need a non-compete agreement. If someone leaves and opens their own business, take the high road and wish them well. It will serve you better in the long run than filing a lawsuit and acting like the clients they might have had are your property. People have the right to do business with whomever they choose. Trying to prevent that is like herding cats, and it will not cultivate loyalty from either employees or clients.

9 Replies to “Non-Compete Agreements: Disagreeable”

  1. Laura,

    Well said. You articulated my thoughts perfectly. I was having this discussion with my lead massage therapist after one of our other MTs left to start her own business. I gave to her clients the phone number to reach her and wished her well. I don’t look at her as competition but rather a complement to our business and our health care mission.

    We do not have anti-competition agreements but rather strive to make this a place where people want to work and are proud of their employment. I also do not have a large employee turnover. If we make the work environment as pleasant as possible, there is no need for a forced anti-competition agreement.

  2. Wow. I’m impressed. That’s impressive that you have massage therapists stay with you for years, particularly since so many of them move around quite a bit anyway. That’s great. You’ve created a win-win situation.

    Massage is physically demanding work. There’s a limit to how much one person can do. Unfortunately, it seems a lot of employers think they are going to make a lot off a massage therapist’s hard physical labor. This leads to resentment.

    You have an exceptional attitude and I commend you for it.

    As for the legality of non-compete agreements – many fields and industries require them. Apparently they are not enforceable in California but they may be legal in other states.

    Thanks for your article.

  3. Thanks for writing this article Laura! Non-compete clauses can truly be problematic. As a AMTA chapter volunteer I get questions about these from time to time from chapter members. They are happy be offered a position working in this field we love, but then afraid of the ramifications of signing a contract with an often burdensome non-compete clause. I especially appreciate your take on the issue, being that you are not only a Massage Therapist but a business owner with so many loyal employees.

    I do need to take issue with the advice given by the attorney however: “If an employer asks you to sign a non-compete agreement, go ahead. It won’t stand up in court unless you happen to be the VP of Massage Envy who is privy to company secrets. When it comes to the average massage therapist, it’s just a blatant attempt to restrict free enterprise, and it won’t hold up.”

    What he said may be legally accurate, (and I suppose that is the job of an attorney-to look at the issue solely from the perspective of the law,) but to sign a contract with no intention of fulfilling the agreements in it simply because “it won’t hold up” seems dishonest at best.

    If a Massage Therapist disagrees with the terms of a proposed contract, they can always try to re-negotiate those proposed terms. And in so doing, they can get a great deal of information about the person with whom they are about to do business. If a contract partner won’t budge on this issue, then the Massage Therapist can always look elsewhere. For all the reasons you point out, a non-compete clause is a red-flag to a job seeker that this might be one to pass on.

    But in a world that grows increasingly dark because of distrust, cynicism, and unethical behavior, it makes it even more important to be honest, honorable and to act with integrity, even if that means having to spend more time looking for a better opportunity.

    Be well!

  4. One of the reasons that I work for myself is that at the last 2 spa jobs I had years ago we were asked to sign non competes. This is fairly standard in the day spas in suburban Chicago. I just never did it and started working. I personally know of several hairstylists at least who have been sued by former employers. It’s not that they will stand up in court, its more of control tactic by high handed employers here who believe that they own the client. At one place I worked the manager required us to use fake names at work ( first names only) to alleviate confusion over tip envelopes in “case some one was hired with the same first name” I feel so foolish, like I was using my “stripper” name (remember that game – the name of your first pet + Your street as a kid?). Where do they get these nutty ideas???? But it happens. If they require non competes you do have the right to negotiate it before signing to make it reasonable for you.

  5. Laura,
    This is a lovely article, and as an owner of a small wellness center, I couldn’t agree with you more. I think that the relationships developed between therapist and client are precious and should be allowed to be maintained regardless of where a therapist’s professional path takes them as they grow.
    That being said, I am wanting to address an issue in my business currently. I have several people working for me as independent contractors, and I am very happy with their massage work. I made it very clear when I hired them that I do not believe in signing non-competes, and if they were to move on from this space at some point, I would not object to them informing clients of where they would be going.
    That being said, it has come to my attention that some clients who came into my wellness center initially (via my marketing and reputation) may be being invited into the private practice locations of some of our massage therapists instead of seeing them on the days that they work here. I can’t help but feel concerned about this, and I am wondering how you would address it. I am considering sending out an email making stating that as long as therapists work here, I would prefer for them to see clients of this wellness center at this wellness center. Do you think that is fair?

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  7. Great article…but what happens when you fire a therapist for being disrespectful and they turn around and call, facebook or email all of their clients to tell them she was fired and now you can find her at….?!?!? It would be one thing to leave on good terms and I agree with sending them on their way, but trying to “steal” clients that we brought in to take with you to another business…that is where I have a problem.

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