A growing number of employers now require employees to sign non-compete agreements as a condition of employment. Not many, however, think to ask prospective employees whether they are subject to a non-compete agreement with their current/former employer. Failure to do so early on in the hiring process can have serious—and expensive—consequences. If you do not ask a potential hire whether he or she has a non-compete, and they do, you could end up with an employee who is unable to do any of the duties of the job without violating the non-compete. If the employee does do any such work, the former employer could sue your company for interfering with the non-compete, as well as seek to bar the employee from working for your company altogether.
To avoid problems, the best practice is to ask about the existence of a non-compete early in the hiring process. In most cases, employers will pass on hiring such candidates. Keep in mind, though, that many non-competes are unenforceable. For that reason, if your ideal candidate for a position is subject to a non-compete, there is no need to write him or her off without further consideration. Instead, get an opinion from legal counsel on the likelihood that the non-compete is enforceable. Armed with that information, you can make an informed hiring decision.