Weighing Your Early Options in a Non-Compete Case
One of the first considerations for an employee under a restrictive covenant (or non-compete) is whether he should quit and start his new job as quietly as possible; or whether he should discuss it with his employer in an attempt to come to some agreeable resolution beforehand. There is no right answer and there are lots of ways to get where you're going.
Under Pennsylvania law one option available to an employee is to be the first one to the courthouse by filing a Declaratory Judgment Action. In a DJ Action the employee is asking the Judge to review the language of the non-compete and various circumstances, including where the employee is going to work, what he intends to do at his new position, and why he is leaving his current position. For expediency, the employee can file the DJ Action along with a motion for a preliminary injunction.
When weighing the options of this strategy there are some obvious downside. First, by taking the first swing, the employee will definitely incur attorney fees and costs. Second, the employee may have started a fight that never would have started. But when litigation is a virtual certainty it can be wise to testify before the Judge wearing a "white hat" as opposed to getting caught after signing on with the new employer.
But an employee can move too quickly in some cases. That is because a reviewing court may decide that if the employee is simply looking for an advisory opinion on whether the restrictive covenant is enforceable (where the employee doesn't even have a job offer) that there is no irreparable harm; or in the case of federal court, the matter is not ripe for jurisdiction.
One thing is certain, it is best to seek competent legal advice before you leap. Keep all your options open in the often arbitrary world of restrictive covenant enforcement.