With the blog approaching its fifth (!) anniversary later this year, I thought it was time to revisit some subjects that I covered in the blog’s infancy and update them.
One such story from way back on September 14, 2007, was a new law that prohibited non-compete agreements by security guards. Back then, I stated:
[The new law] prohibits employers from requiring security officers to “enter into an agreement prohibiting such person from engaging in the same or a similar job, at the same location at which the employer employs such person, for another employer or as a self-employed person”.
(If the employer can “prove” that the employee received trade secrets, then a non-compete can be used.)
The law refers to the USDOL’s Standard Occupational Code for “Security Guards” (33-9032) as the covered group.
So what’s new? Well, in 2010, the USDOL changed the defintion for this code to make it a bit broader.
Previously, this code covered those who “Guard, patrol, or monitor premises to prevent theft, violence, or infractions of rules.”
The new definition, or at least interpretation, covers those beyond the traditional notion of a security guard.
Guard, patrol, or monitor premises to prevent theft, violence, or infractions of rules. May operate x-ray and metal detector equipment. Excludes “Transportation Security Screeners” (33-9093). Illustrative examples: Bodyguard, Bouncer, Bank Guard
There are ways, however, for security companies to protect their workforce from poaching. For example, a security company can still contract with the company for which it is providing services that any successor security company will not use the predecessor’s security guards for a period of time. The law only prohibits the use of non-compete agerements with the security officers themselves.
Regardless, employers should be aware of the restrictions this law places and draft any restrictive covenants to comply with this law.