My wife has an offer from a company in NYC and the contract says specifically that she would be an independent consultant for a 3 month trial period, and not an employee of the company during that time. It also has a non-compete clause in it.
Neither of us is particularly an expert at the language this contract is written in, but it sounds like she basically wouldn't be able to work in advertising if this company trial period doesn't work out... which would cut out the vast majority of positions available for her expertise.
I have encouraged her to ask to have the clause removed, at least the initial trial contract if they aren't willing to remove it altogether. Is that even necessary? Is the non-compete enforceable if she isn't an employee of the company?
A non-compete is intended especially in situations where you are not or no-longer and employee of the company. For as long as you are exposed to privileged business 'secrets', customer lists, strategy, etc then it makes sense that the recipient of this information be barred from using that information to compete ('steal' clients, employees) etc
Non-compete's in general are tricky and enforceability is state to state.
But, a non-compete, confidentiality etc. can be setup between employees, contractors, anyone.
Enforceability in general is tough. If she is in the advertising business and a contractor, and not hired after a trial period it would be unlikely any court would allow that non-compete to stick. The court would want to see people able to work, and if it is too limiting it won't hold. But the key word is court. They could try and take her to court if she got a job with their biggest competitor OR directly with one of their clients.
It seems perfectly reasonable to request the non-compete not be applicable if she is not hired on full time. As it is her profession and she will need to find another job.
Yes, it's enforceable, as long as the non-compete is limited in time, manner and place- e.g., it has to restrict competitive activities for a period of at most a few years, in a specified geographic area and in a certain field.
I'd just ask that the non-compete be deleted, period.
Cross out the parts you don't like - initial the cross outs and send them back.