Not long ago a fellow writer contacted me about a potential gig. She's working full-time for an employer now rather than freelancing, and she wanted to know if I could refer freelancers their way.
In our conversation, she mentioned that the gig would require the writer to agree to a one-year non-compete clause to protect her employer from competitors who had been actively (and somewhat underhandedly) trying to get information about the company.
As a result, I let her know it wasn't something I'd be able to put up in the job board here (which I otherwise would have done) because I won't promote freelance writing jobs with this requirement. Let's talk about why that is, what the company could have done instead, and what you can do if you're asked to sign a non-compete clause you aren't comfortable with.
Note: I am not a lawyer. This is not legal advice. I highly recommend you have an attorney review any standard contracts you create for your freelance writing business, as well as any significant contracts you sign.
The Problem with Non-Compete Clauses
Non-compete clauses are more common in an employment scenario. It helps to prevent talent poaching and keeps employees from quitting and directly competing with their former employer.
They generally have limits (such as the one-year limit in this case) and should be somewhat narrow in scope (an e-commerce software developer being barred from working for direct competitors vs being forbidden to take any kind of development work for example). If they're over-reaching, they may not be enforceable anyway.
Despite these limits, non-compete clauses are a problem if you're a freelance writer -- especially if you're a niche or industry expert and you specialize in working with that narrow group of clients. It's essentially one client in your specialty area saying you can't take gigs from other clients in your specialty.
But that's kind of the point of being a specialist. And, as a business owner, you should not let any individual client dictate whom else you can or cannot work with. Making sure you're "allowed" to take on other clients is part of the legal distinction between employees and independent contractors.
While I won't tell you what to do if a client asks you to sign a non-compete clause, I can tell you what I would do.
I would say "no."
Just "no." End of story. Non-negotiable.*
Your value as a specialist is in the industry or niche knowledge you bring to the table. And you can, and should, exercise that value by pursuing multiple clients in that particular market.
That said (as in this case), companies are concerned their freelance writers might take inside knowledge from their company and use it to benefit one of their competitors.
But a non-compete clause isn't the right solution here.
* The one exception I might consider is a very limited non-compete clause with middlemen clients (like marketing, PR, or SEO firms, where I'm working for the firm's clients). I wouldn't sign one forbidding me from working with other firms they might compete with. But I would sign one stating I couldn't try to poach their clients directly or work with their own clients for a limited amount of time after our contract was up. So, if a firm hires me to write one of their clients' press releases, I won't privately contact that client and offer to do the same for them directly, cutting out the middleman.
Introducing the NDA
Instead of a non-compete clause, a non-disclosure agreement (or NDA) makes more sense in many freelance writing contracts. And that's what I suggested to the colleague who contacted me.
This is a more limited agreement between you and a client. It doesn't forbid you from working with other clients, even similar ones. Instead, it forbids you from disclosing inside information to anyone else.
So if Client A tells you about their future business plans because you're writing their annual report or something else, you can't share that information with Client B. You would have to work for Client B almost as if you had no relationship with Client A.
Another example sometimes comes up when I'm writing white papers. Occasionally a client will pay for an expensive research report because they want the paper to reference specific industry data. I can use that material in writing their white paper. But with an NDA in place I couldn't share that information with another client or use it in writing another white paper (either for a client or for my own business).
That's fair. Your client's confidential information would be protected. And your right to work for multiple clients within your target market is also protected.
Asked to Sign a Non-Compete Agreement?
What if a client asks you to sign a non-compete agreement and you choose not to do that?
Walking away isn't your only option. Consider asking the client or prospect what their concerns are.
If they really don't want you working with similar clients, you can have a conversation about why that's a problem for freelance professionals -- especially specialists. (If they want you exclusively, they can hire you full-time as an employee, pay their portion of taxes and benefits, etc. The client role lets them take on less responsibility, but as a result they don't get those extra perks like control over your schedule and other contracts.)
If their concern, like in the example here, is more about confidentiality and protecting inside information about their business, you're in luck. You might be able to convince them to swap the non-compete agreement for an NDA instead. It never hurts to talk it over.
As I said, I'm not a lawyer. This isn't a comprehensive guide to non-competes and NDAs. But it's an important issue to be aware of when you're offered freelance writing contracts created by a client. You have to decide which you're comfortable agreeing to, and which you're not. Always know what rights you're giving up, and for how long.
Have you ever been asked to sign a non-compete or NDA for a freelance writing project? Did you agree to it? Why or why not?