Non competition clause and freelance work with competitor.

[Luckydog7]

Context - So i have started working in a great part time job at a landscape architects 3 days per week after being a sahm. It is a well known and well thought of company, small team (so i'm quickly becoming quite important)

I did freelance work prior to this and part of my new works reasoning to have me do part time instead of full time (as advertised) was apparently so i would be free to continue with freelancing.

As I turns out i haven't had any time for additional work and am relatively happy with my three days of work then two days with the kids.

My work is exclusively in the office about 20minutes drive from home in a lovely office and rural setting. My contract has a non competition clause.

A couple of weeks ago i was approached by a company to do freelance work. The work, while similar, has basically no crossover. Think something along the lines of they design and build garden buildings. The Landscape architect would(and has in the past) contracted out work to the smaller company but wouldn't really do the same projects as they are too small for one thing.

I have already approached manager who didn't immediately veto the idea of me freelancing but i sense she is very reluctant. I said i would come back with more information.

I have had some back and forth with the smaller company and the work sounds amazing, perfect for me and my experience and more interesting then what i do currently. They have also agreed to a much higher hourly rate of pay (twice as much but without benefits) full remote working, flexible etc etc.

Ideally i would want to do both jobs. I would want to do four days per week. my three at the landscape architect and one at the smaller company.

I am wary of quitting my current job as it is very secure, reliable and has great future prospects. The new job is somewhat unknown, they are having a busy period. and who knows how long that will last. I don't think they have enough work to provide me with enough work to be equivalent.

Both companies charge upfront for their design work so I cannot see a client paying for both design services so unlikely to ever be indirect competition for the same job.

Can anyone offer advice about this competition issue and how it is judged relevant or not? I was told i could do freelance work in my spare time but my experience is exclusively in landscape and construction areas so i'm not sure how i could do other work without falling afoul of this policy.

My plan is to talk to my boss this week but i want to be armed with what to say. I am tempted to ask the office manager, who knows more about the contracts and is more impartial as she doesn't own the company.

So, any pearls of wisdom?

Just found the part in my contract, basically it just says i can do freelance work as long as there is no conflict of interest.

The employee handbook says something along the lines of.

'to ensure the company does not lose out financially and to prevent conflicts of interest you must seek written permission before accepting freelance work'

If there is no cross over, it should be fine. The non-compete must be limited to the actual work you undertake for your employer, otherwise it’s likely to be unenforceable. For example if you work as a receptionist at company A, the non-compete can’t prevent you for working as a cleaner at their competitor B.

Sounds like you just tell them you’re doing freelance for X company, stating briefly what it is and why there’s no conflict. Then your boss says yes ok. They can’t refuse all freelance requests because you were told you could freelance and your contract indicates it’s permitted.

I don't know if there could be a potential for cross over. Both companies would work for the same kind of client so there is the very slim chance that by working for one it could take work away from the other but struggling to think of a possible example.

I'm a CAD artist.

I do some 3d model editing work for the landscaper plus construction drawings and minimal design work.

The new company wants mostly design work to 'sell' the project but also probably some construction details, measurements etc. They design timber buildings, playgrounds, outdoor classrooms.

I'm not sure how I can categorically say there will be no conflict. I mean i suppose they have to trust me to some degree (just like any employee) to not share confidential data about clients but there could be some possible imaginary scenario where there would be a problem. Could my employer refuse without a concrete example? Could i offer to recuse myself if a conflict were to arise?

MMm, I tend to feel these restraints that companies put in place are often irritating but actually, I do think there's a conflict here. It's not just in terms of the commercial aspects - ie where you are pitching for the same job which sounds like that's an unlikely/uncommon occurrence. It's also about creativity, sharing design ideas etc. If you're working with main company and you collectively explore a new design,, you could take elements of that and consciously or unconsciously add it to work you do for the other company.

@Triffid1
I get what you are saying but the styles of the two companies are radically different. It would more likely be an issue in the other direction as the smaller company's style is far more distinct. Also the smaller company doesn't do landscape design, just individual builds while the landscape company exclusively works on large, high end and ultra modern designs and any structures are subcontracted out, not designed by us.

Have you worked for the current employer for more than 2 years? If not the question is moot. The employer can dismiss you for almost any reason they like. In which case if they don't like it they can simply give you notice.

No nearly a year. tbh its not a large company and very busy, it took them ages to find me so i'm fairly confident they wouldn't want to get rid of me on a whim. They have an on going staffing issue because they have very high standards. If this other company could offer me enough work it might be tempting to jump ship.

Until you have gone back with more information I am not surprised they are reluctant - you need to be open and honest about what the other job entails. If they then think there is a crossover they'll refuse it and then you can potentially look at leaving but it just sounds like you haven't given enough information yet.

Also if you took the job with their understanding you'd be carrying on with freelance work then that is the angle you should take as well as what the work consists of.

I do something similar in a completely different line of work - think ie work in hospital as main job and write about medical uniforms as sideline - and I did get my manager's permission. Always best to be upfront.

The problem is that while that may be technically true, nonetheless the risk of cross-over is there. Also, let's be honest, the 3-day-a-week company are never going to admit that they are less cool from a design perspective!

I think you can and should ask but I think that based on your contract it would not be odd if they said no.

I have the exact same clause in my contract, although completely different sector.
I work full time and do a bit of freelance consulting on the side, for which I had to get written permission. I think it comes down to 'conflict of interest' which is basically if you find yourself in a situation where you are doing the same (or very similar) projects for both companies and/or whether you would be redirecting a client or customer from company A to company B (or vice versa), or using information gained at one company to directly benefit the other.
Using your know-how and experience, while not revealing anything confidential should absolutely be fair game. If you haven't already got a confidentiality clause in your contract, you can offer to sign one before starting the freelance work.
(FWIW, my freelance work is paid at double the rate of my regular job, with no commitment and no other benefits. It feels like that's a standard arrangement)

I think then that you need to decide what it is you want. Your current employer may have specific issues around recruiting people like you - but nor is it a "whim" to terminate someone for breach of contract! And it sounds like you'd be perfectly ok with walking out on them if the other job worked out for you - which is perfectly ok to do, but think about this... what bridges are you burning, and given the two companies do work together at times what fires will you have started that could cause damage to one or both companies? If your current employer is fine with it then great - no problem. But be very careful about playing possible competitors off against each other, because it's likely both of them will prefer to sacrifice you rather than damage relationships between each other.

It is a conflict of interest for the business that they should be interested in, so for example would both firms pitch for the same work?

If not I'd say that you would agree that should anything come across your desk in the second role that the first role would pitch for, then you'd recuse yourself. Or potentially and always my favourite stance, could both companies pitch as a joint application to cover more jobs and work together on some projects?