The widespread use of non-compete agreements – along with the concept of captive clients and captive labor – continues to produce the most absurd scenarios. Ladies and gentlemen, I give you MaidPro. MaidPro is a cleaning service. Recently, MaidPro was involved in a spat with a customer in Washington D.C. The customer had used a particular MaidPro maid for years. When that maid left MaidPro, the customer sought out the maid and asked if she could still retain the maids services.
Now for the absurdity: The owner of the local MaidPro franchise actually sent an email to the customer telling her that he suspected she had been in contact with a former MaidPro maid AND that there was a $2,500 referral fee for clients who wish to hire MaidPro maids directly. Wow. Obviously, MaidPro has no legal authority to assess a customer a $2,500 referral fee. No customer ever agreed to that. But this franchise owner though he would give it a shot— who knows, maybe some busy, affluent professional would just pay the “referral fee” without thinking twice.
That didn’t happen. The former MaidPro customer obviously balked at such an absurd suggestion and refused to pay. Eventually, when reached for comment, the folks at MaidPro’s franchise headquarters in Boston said that there was such a fee but that the client is under no obligation to pay such a fee—that the maid would have to pay the fee. Reading between the lines, MaidPro either effectively admitted that it tries to extort its clients OR that it just has very dumb franchise owners.
And yes, of course, MaidPro maids have non-compete agreements. This is absurd. There are no trade secrets here. There is no confidential information. There is no extraordinary or specialized training. The only protectable interest here is customers. But, once again, non-compete agreements cannot be used to prevent customers from choosing which merchants they hire. If a maid separates from MaidPro, and I have a relationship with that maid, and I want to continue to have that relationship, MaidPro should have no right to stop me. Although a non-compete agreement can be used to prevent a former employee from soliciting the company’s customers, there is nothing to prevent the opposite from happening: there is nothing to prevent the customer from seeking out the former employee.
This scenario involves maids. It’s not overly serious. But think about doctors. This is a very common occurrence with doctors. A doctor leaves a practice and is subject to a non-compete agreement. He sets up shop 25 miles away, in a different town. Some of his patients need that doctor. They are willing to drive the 25 to see him. But the doctor is so afraid of being sued for violating his non-compete agreement, that he refuses to see those patients.
The bottom line: Absent trade secrets or truly confidential information, a non-compete agreement cannot (and should not) be used to prevent a customer from doing business with the professional that best meets his needs.
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