Non-compete clause: what I am allowed?

Visas, Permits, Passports and Naturalization
1
1. If I am an IT consultant and my non-compete says I should not do anything that competes or resembles my current work what I am allowed to do actually?

- Continuing to be an IT consultant for another company even using another IT product is regarded as competition?

- Being an contractor I guess is directly competition?

- Working for a customer as in-house IT consultant resembles to much my current work?

2. These clauses apply both if I leave or I am let go?

2
Are you going through K2? They try to stop you working through any other agency. Or at least, they did. The legal advice a colleague got was that if the non-compete clause prevents you from working for a living they're not binding.

If you're let go, the clauses can not apply.

If in doubt, talk to a lawyer.

3
I think you need to talk to a lawyer to find out what is legally enforcable in Switzerland...

Here is something I found within one second of googling which might save you a trip to a lawyers

4
Most of these clauses are not enforceable and if they are, the company who wants to enforce it needs to pay you salary during that time. If you breach it, the company needs to prove the business loss that your specific breach did and sue you personally.

Unless you are a really big shot I would think you are fine but by all means check with a lawyer if you wish but my first step would be to ask the company how much they will compensate you to enforce the clause, that should have it go away and its for free.

5
You can imagine the sort of business practices that lead to clauses like this.

Agencies, certainly IT ones I have worked for call all their employees consultants, an insult to the medical industry.

If you work for agency A for employer A, agency A get a percentage of what you earn every hour. Now agency B would like to see that money so given half the chance they will offer you 10% more to work through them, for employer A. Now should you switch then... Agency A wants some legal recourse to get their money, and who better to chase than you.

A situation that I suspect it getting worse because Agencies A-Z will charge employers A-Z significant margins over what they pay you. And Employers A-Z know this too, so finding a cheaper agency that will pay you more isn't difficult, just rather unscrupulous.

If you leave agency A and employer A and go do the same work in employer B... then nobody really gives a monkey a**e. Assuming of course you don't steal information/clients from employer A and take them to employer B. Agency A might get upset if they have other consultants in employer B and find out...but I don't think anybody is going to try and enforce any sort of contract.

The RAV, that organization we all love to hate is going to be on your side, and well I don't think there is a private/public company in Switzerland who are going to stand up and argue with the RAV. If you told the RAV you lost your job because of a clause stopping you working in your industry they would take the company to the cleaners.

6
Its mainly rubbish. the only catching area would be if your working in Pre-Sales and you start stealing clients, then they have a bit of a chance. The "You can't go and work in IT somewhere else" is just drivel, it's put in to scare people into not resigning through fear.

7
Tell that to Sherlock Holmes - the original consulting detective. The term was probably coined before it was used in the medical sector.

Or do you consider the term "contractor" offensive to dry-wallers?

8
Having spent many years contracting in Switzerland I can say that that is drivel as you call it.

Non compete clause can be enforced as long as they are reasonable and don't prevent you from earning a living. And in my experience such contracts written by Swiss agent fall into the category.

But in any case most employers will not entertain the idea of you switching agents because they don't want to get involved in such disputes. So unless your current agent agrees to the switch, it is unlikely to happen.

Like wise employers have rules about taking you back within a certain period with a different agent for the same reason.

Employers take on contractors because they need certain skills without hassles, if you are the cause of the hassle don't expect them to pick you over the other hassle free options available.

9
in summary, (despite the tone a above), Op, its the same message: can you go and work in IT for another company or agency - yes. Can you work for another agency then steal clients from former position - no, as is being said above, the client isnt going to take the risk.

But if you are talking about being an IT Consultant for Blue Infinity then going and being an IT consultant for Accenture for example, no, you shouldnt have any problems as you are plying your standard trade and they cannot stop you. A more realistic parallel might be the idea a bathroom fitter who fits bathrooms for Company A leaves and joins Company B and they have a clause saying "but if you leave us, you can no longer fit bathrooms". Its not realistic.

10
Perhaps ask at DFA

https://www.dfa.ch/rechtsberatung.php

11
Non-compete agreements should contain places, not work; i.e. the company can write that you cannot work with direct competition because of the possible information exchange etc. But this does not apply with IT agencies, because they will need to prove that you have stolen their data and now sharing it with your new agency, i.e. direct damage to their business. If you try to steal their clients, then you are at big risk of course. But as many others said, no client of your ex agency will work with you, it is not worth the risk, both legal and reputation wise.

In short, employers try to block your moves with these non-competes, but they do not hold in court.

Also, nobody can prevent you from working in a field, it is against basic human rights.

The Universal Declaration of Human Rights states in Article 23.1: (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

https://www.eda.admin.ch/eda/en/fdfa...-treaties.html

12
What you say is only correct insofar as it prevents you switching agencies while working for the same client. Or going direct.

As I understand it, the OP is talking about not being allowed to take a contract through a different agency for a different client. My experience is some agencies try this on. I have seen Swiss agency contracts that try to mandate that you can only work in IT, in Switzerland as a contractor through them.

13
Access to proprietary information or business secrets would be other reasons. A USB key means one can steal just about everything.

14
yes, but thats theft - like was said above, totally different ball game. if you nick stuff, steal clients, take IP with you, then its trouble.

If your just a contractor doing IT for Company A and go to Company B - no prob.

15
I agree, I don't think you need a non-compete clause for something which is already illegal