Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Wednesday, October 27, 2010

Non-Compete Agreements - Top 5 Ways To Get Out of Yours

Your employer will tell you that you are bound by your non-compete agreement when you leave. The reality is that most employees don’t have the will or the resources to fight them. Many employees think that, just because an employer forced them to sign the agreement or be fired, that they are not bound by a non-compete agreement. That’s just not true. Continued employment is valid consideration for a non-compete agreement in some states, and almost all will enforce some non-compete provisions. That doesn’t mean you can’t get out of yours if you’re willing to fight.

What usually happens is the employer sends a letter to the employee and the new employer, threatens to sue both, and the employee gets fired from their new job, even where they told the new employer about the non-compete. That’s because, unless you have a contract with the new employer spelling out that you can only be fired for cause, and that the non-compete is known to the employer and is not cause, most states are at-will states. That means any employer can fire any employee for any reason or no reason at all.

Does it stink that companies can force employees to sign non-competes and use them as essentially indentured servitude? Yes. I see cases all the time of bully bosses using non-competes to force employees to stay under terrible conditions. Or worse, cases where an employee quit their great job based on promises, then were presented with a non-compete after they start the new job. They stay a month or so, during which time the new employer uploads all their valuable contacts into the database. When the company gets what they need, they fire the poor employee, then say they can't work in their field for a year or two. Will courts enforce such a despicable scheme? Sometimes.

The laws need to change, so call up your state legislator and complain. Better yet, write them. In the meantime, can your employer enforce your non-compete? Maybe. Can they outlast you financially if they sue you? Almost certainly. Do you have rights? Absolutely.

Smart employees consult an attorney before signing a non-compete to be advised of their rights. Even if you signed without getting advice, you still may have some legal arguments to defeat your non-compete.

1. Employer breaches the contract: If your employer put the non-compete provision in an employment contract spelling out compensation, insurance and other conditions of employment, it is important to have an attorney go through the contract line-by-line. If the employer breached the agreement by failing to pay all compensation due, failing to fulfill the insurance requirements, or failing to meet some other obligation, the employee may be relieved of all obligations under the contract.

2. No legitimate interest to enforce: Many employers attempt to overreach their legitimate business interests, and this is one of the most common mistakes. For instance, an employer has no legitimate interest in enforcing a non-compete against low-level employees such as receptionists and clerical employees. An employer who manufactures computer software for accountants has no legitimate interest in preventing an employee from working on software for doctors. An employer who is phasing out of an area has no legitimate interest in preventing an employee from working in that area. An employer who abandons a particular customer, area of business, or product has no legitimate interest in the area it abandoned. The following are likely to be considered legitimate business interests in most states that allow non-compete agreements:

a. Trade secrets;

b. Valuable confidential business or professional information;

c. Substantial relationships with specific prospective or existing customers, patients, or clients;

d. Goodwill associated with an ongoing business or professional practice, by way of a trademark, geographic location or marketing/trade area;

e. Extraordinary or specialized training.

3. Agreement is for too long a time period: Your state non-compete statutes will determine what time period the courts will consider reasonable. For instance, a period of less than 6 months may be presumed valid, and over 2 years might be presumed invalid. In between, the employer will have to prove that the time period is reasonable. However, courts may assume that agreements up to your state’s maximum number of years are reasonable. Anything over your state’s set maximum is going to be a hurdle for the employer to overcome.

4. The so-called confidential information is something readily available to the public: Many companies get their sales leads from public sources. Phone books, professional directories, the internet, notification services, are all sources that are available to anyone in the industry. So an employer who claims they are protecting their valuable secret client sources is going to have to show that the information was not available to everyone else in the industry. Existing customer lists or unique sources may well be protected, but chamber of commerce directories are probably not.

5. Public health or safety would not be served: This primarily applies to doctors, nurses, and people in specialized scientific and health areas. If there is a shortage of people in a particular specialty, or in a particular geographic area, then the employer probably cannot enforce a non-compete even if all the other requirements are met. If you are one of 10 brain surgeons in the country who can perform a particular procedure, your employer probably can’t prevent you from saving people’s lives.

In general, I tell people to assume their non-compete agreements are enforceable, and not to sign them unless they can live with the restrictions. But an employee with the time, will, and resources to fight can frequently limit or eliminate their non-compete provisions.

And an employer who tries to enforce a non-compete and fails may end up paying the attorney’s fees and costs of the prevailing employee, and will sometimes be paying money damages to the employee for tortious interference with an employment relationship if they cost the employee a job.

If you’re leaving a job and you have a non-compete, the best thing to do is get advice from an employment attorney before you leave. You’ll want to look at the agreement to see which state’s law applies and get a lawyer in that state to take a look. If no state is specified, then it’s probably the state where you work for the employer. A written agreement with the new employer to defend you and to pay you even if you can’t perform particular services if a court issues an injunction will protect you.

If you get sued to enforce a non-compete, you MUST contact an employment attorney in the state where you’re sued immediately to defend yourself or you will lose your new job, you will have a money judgment against you, and you will have no ability to raise any defenses to the non-compete agreement.

101 comments:

  1. Hi, I'm a Korean speaking registered nurse resided in MD. I've recently been sued by my previous employer(an adult day healthcare center) for breaching non-compete agreement. I actually worked somewhere else for almost 6 months before I took this current job at another korean ADHC. I've already received a TRO. What should I do next? Quit or fight?

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  2. Hi Kim. Run, do not walk, to an employee-side employment lawyer in your state. Try http://www.nela.org to locate someone near you.

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    1. I signed a non compete in 2009 and resigned three weeks ago. My question is-since I was laid off for a month and received unemployment compensation in 2011, isn't that when the two year non-compete clock began ticking? I did not sign another agreement after I returned from the lay off.

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  3. My former employer sent a cease-and-desist letter to me and my new employer claiming my non-cmpete with them prevents me from working n the field of my choosing in the area of my location, and theirs unfortunately. Fine, I sued first for declaratory judgment. Fast-forward 7 months and I added charges of overtime not being paid. My former employer replied with a check for "hours we failed to pay yu." since the non-compete was part of an at-will employment agreement and one sentence in it says "employee to receive ALL sums due him/her" and since they agreed they didn't pay me everything except after 9 months...my non-compete case looks mighty good now. It looked good before atually, now it looks golden. I'll let you guys know the end of it but they have pretty expensive lawyers wh want to be paid so it won't be over until early next year at least...I think.

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  4. Sounds hopeful, northfield! Good luck with it. Keep us posted.

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    1. A Cook County Circuit Court judge dropped the bomb on my ex-employer: the 2011 non-compete agreement is unenforceable. Ha! I told the bastards before they sepnt all those $ on those fancy lawyers with initials on sleeves like they are important or something. Anyway...my ex-employer is hell-bent on breaking me so now they discovered I signed another non-compete in ...2006 hahahahaha so they are suing me and my new employer nder that contract. I am telling them in the best English I could gather under the circumstances: bring it on, it is an honor to fight greedy bastards like you." And since I mean what I say I withdrew my overtime claims from the state court and filled in the federal court. That somehow drew their attention because their lawyers were less cocky than before :) I'll let you guys know when I'll send the 2006 non-compete after the 2011 non-compete...in the garbage where it belongs and I'll let you know about the wage lawsuit. BTW, my ex-employer called every employee there in the office and they walked out with the wages they had in 2011, before the paycut they came up with because they know employees don't bark much...I think they are scared of anyone joining me :)I don't care...I know when I'll be done with my ex-employer, it will be heavy on the right path of treating employees and ex-employees.

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    2. Congratulations! Hopefully the 2011 agreement says it supersedes any other agreement. I also hope you go after them for any fees and costs you incurred on the first one. Let us know how it goes.

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    3. Hi Donna. when I'm done with these bastards I'll connect with you on linkedin...right now I don't want them to think you are "in my corner" as they already dropped lines to the judge that I am not as "helpless" as I say. Of course I am but I put a nice front hahahahha. The fees...Federal Court is out of my league so I found an attorney willing to take it on contingency. He asks the Court to have my former employer pay...ready...$1 mil for illegal discharge, plus fees and back pay times three and all that. So don't worry, my lawyer will know how and how much to ask and he better...that's where his commission comes out of. As for first case expenses...I tok the subawy downtown so it was $5 round trip, I did the stuff on my already-paid computer and print it at library where first 5 pages are free. Yes, I print five per day since I need the workout anyway...As for 2011 non-compete...it doesn't need to say it precedees anything...I'll say it in my way which drives their lawyers crazy and makes the judge fight hard not to laugh. I don't know the law but I know common-sense and I'll ask the judge then let's go back to 1860 when company came into existance...why stop at 2006, right? Once going back is acceped, let's go back like we mean it :)

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  5. I am trying to get out a situation where our contract with our customer ended and now there is a job opportunity with the customer that I want to pursue. In order to do so, I need to get permission from my employer (ex-vendor to new place). Is there something more that I can do if my request to end contract does not work? I feel like I was under duress when I had to sign it....either sign it or lose your job. I really want this new position and will do what I need to in order to get it without too much expense.

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  6. Hi JU. In my state (Florida), employers are allowed to use the old "sign or be fired" trick to coerce employees into signing. Some states don't allow it. You should talk to an employee-side employment lawyer in your state. Try http://www.nela.org to locate one near you. Good luck!

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  7. I too live in Florida and plan on leaving my current employer to pursue freedom as a self employed individual. That being said my wife and I will be creating a business model close to but not identical in nature to the one I'm leaving. I have a non-compete agreement in place and my wife has no ties to my current employment in any way. The agreement states that I cannot work within 10 miles of one of the franchises of the current business and that I have to wait one year before entering into the job market in a related field.
    My wife and I plan to open the business in my wife's name so she will be the owner, but she has a full-time job so she will not be directly involved in the day to day operations. I will be the unofficial primary worker at the new business as I have the experience in the industry.
    My question is this, If I were to "show up at the workplace" and not draw a paycheck (ie. not on the payroll) is that a breach of the non-compete?
    Any insight would be greatly appreciated.

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    1. You could not take their customers but they could not kick you out of the profession of your chosing. Their non-compete protects them but it can't break you. I'll take my chances with the judge...but make sure you do not have any of their customers as your customers...that is something judges don't like. Other than that...your ex-employer is done no matter what their lawyers are telling them, and you. If you have money save yourself the stress (it is huge, I went through it for 8 months for a 4 page document!) and hire a lawyer. If you have no money, become an expert in restrictive convenants and try to do it by thursday, yes? :)Internet leveled the playing field...you should be able to teach them a lesson they won't forget too soon but the stress though...maybe is better to get a lawyer. And yes, they wil come to hang you even if you do not draw a check or your company is on another name...they want you to suffer and don't care about the judge's decision as it won't hurt them that much or at all...it is you they want and they will come guns blazing. Be ready or get a lawyer but don't worry, they can't kick you out of any legal field...this is America not Iran.

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  8. Sounds like a dangerous game to play, SprockX. It depends on your noncompete, but I'd suggest having an employment lawyer review it to see what it says. My guess is that nobody, including a judge, will be fooled by having a fake name on the corporation.

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    1. I appreciate your information. Although I'm confused about the "fake name on the corporation". It was always our intention to have her be the owner. She will be handling the accounting and all related legal documents and paperwork.
      Thank you again and I will consult an employment lawyer.

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  9. This comment has been removed by a blog administrator.

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  10. I have a non compete that I had to sign in order to receive my severence payments. My company eliminated/consoludated my job so now I am in desperate need of a job and cant work in my field? Any way to get out of this unresonable non compete? I have no money to pay an attorney.

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  11. Hi Fedup. Unfortunately, there's no magic wand to wave that makes a noncompete provision go away. I would suggest consulting with an employment attorney in your state about your options. If you got money for signing, you might be out of luck, but there may be some options you have under your state law.

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    1. I am in washington state, I already had to sign a non compete a year before then when leaving due to job elimination, I had to sign again.

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    2. I am in washington state, I already had to sign a non compete a year before then when leaving due to job elimination, I had to sign again.

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  12. I signed a non compete. I don't remember if it was years after or what, but they did a temp lay off bc of the economy and I was on unemployment for several weeks until they called me back bc business was picking up. I was told that once they put me on unemployment that non compete contract was voided. Is this true?

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  13. Hi Laura. Here in Florida it probably wouldn't be void, but you should check with an employment lawyer in your state. It's also possible that the time for the noncompete started when they let you go the first time, (e.g., say you were let go in March and then brought back in May, your noncompete period might have started in March, so you may already be past 6 months of it), so that's another issue to raise with the lawyer when you speak to them.

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  14. My trade is specifically related to sheet metal;cutting sheet metal on lasers. I recently began a second job to supplement monies being deducted for child support from my first job. I'm a welder at my second job but technically my second job is at a sheet metal business. My first employer asked about my second job and pointed out that "they" were a competitor so I needed to quit if I wanted to continue to work with them. I explained that the responsibilities of my second job were not the same as it was with them and that any second job that I were to aquire would be in the sheet metal business because that is what I specialize in. Again I was given the ultimatum. I was told I knew the name of the businesses I was doing laser work for and could share that info with my second job. My first job does not provide enough pay for me and my family to live, hence my second job. Is there anything I can do? Working in another field will not garnish as much money as working in my own field but according to the non-compete clause ALL sheet metal businesses are competitors. Is there anything I can do?

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    1. Hi GeeGee. It sounds like you should talk to an employment lawyer in your state about this. Try http://www.nela.org to locate an attorney near you.

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  15. in feb 2012 i was terminated and threatened by my former employer. since then he has continuously harassed me. i went to work in a different field for a company that also was in the same market as my employer. i have had conversations with former coworkers stating that my former employer knows where im working and hopes that i can help this company out. unfortunately today i recieved a letter from former employer . it was a bill saying court cost fees and marked charge. the top shows my name and they added my wifes name above it. my wife has no contracts what so ever with them. what should i do?also the former employer has kept my last paycheck and denied unemployment. at the hearing for unemployment the mediator determined i was indeed terminated.i have a letter he wrote to unemployment with deformatory remarks towards me in it. also this company is in the propane field. the company i presently work for is also in the same field but just barely overlaps the same area as the former employers.

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    1. Hi Unknown. It sounds like you should talk to an employment lawyer in your state about this. Try http://www.nela.org to locate an attorney near you.

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    2. I have worked for a company for 2 months and all of a sudden they want us to sign a non compete for 5 years. Is this valid? Seems like a judge would not allow it being this was not disclosed upon hire? This is in Florida and I thought this is a right to work state?

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    3. Hi Bill. Unfortunately, right to work has to do with not being forced to join a union. Yes, Florida allows the old sign-or-be-fired trick. You might want to have a Florida lawyer look at it before you sign so you understand what you're signing.

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  16. Hi Donna,
    I am in Florida. After my wife was fired, I started a very similar business as her last company. I did move half way across the state as I thought a non-compete was only good for the region. Though I am the owner and she has had minimal interaction (though she has had some), we both recieved cease and desist orders. Come to find out, the non-compete says it is for every county in FL, every state in the US and every Country in the world. Now I see attorneys from that firm checking out my LinkedIn every day, so they are probably preparing to sue me... let me know if we can talk! mmars039@fiu.edu

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  17. Hi Donna,

    My state (Kansas) has a law saying employment can be enough consideration at the time of hire, but I can not find anything relating to a condition of continued-employment. After a year of employment with my sales firm without a non-compete, they threatened my job unless I signed a non-compete. It was during the holidays and I was the sole-provider for my family. After a couple of weeks of almost daily mentions I signed under pressure, only to be terminated 10 days later. I felt like it was a setup.

    Do you know where I can research more regarding the consideration clauses of my state? I don't feel I have the resources for a employment lawyer, and am considering self-representation. Thank you for any insight!

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  18. Hi Donna,

    My state (Kansas) has a law saying employment can be enough consideration at the time of hire, but I can not find anything relating to a condition of continued-employment. After a year of employment with-out a non-compete at a local sales firm I was threatened with my job unless I signed a non-compete. It was during the holidays last year and I was the sole-provider for my family. After a couple of weeks of almost daily mentions I finally signed under pressure, only to be terminated 10 days later. It truly felt like it was a setup.

    Do you know where I can research more regarding the consideration clauses of my state? I don't feel I have the resources for a employment lawyer, and am considering self-representation. Thank you for any insight!

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    1. Hi Jeremy. Since this post is three years old, I posted an answer to your question here: http://employeeatty.blogspot.com/2013/06/answers-to-your-questions-on-noncompete.html

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  19. Hi Donna,

    I have accepted a new job after being laid off a couple of months ago. My new employer wants me to start on a date that is three weeks before the end of my non compete period. The non compete itself was actually with a company that was acquired by my former employer before the two were merged. My question is, is three weeks enough time for my former employer to move to attempt to enforce the non compete? Would it even make sense for them to try?

    I appreciate your thoughts and feedback.

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    1. Hi J. Sounds dangerous. Have you told the new employer about the noncompete and asked to wait? If they insist, you might want to talk to an employment lawyer in your state about it.

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  20. If I'm presented a non compete and I sign it with a fake signature, will that stand in court?

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    1. Doubtful, John. Signing your mortgage, "Mickey Mouse" likely won't work any better than signing your noncompete that way. A smart lawyer could get a handwriting analyst to prove it is your writing. And if HR notices it, you're probably fired. You might want to talk to an employment lawyer in yours state about it though.

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  21. Hi Donna:

    So my ex-employer in NJ is trying to threaten me from working for a competitor 30 miles away. They eliminated my position and said they restuctured. It was a contrived effort to get rid of me, because 2 weeks before they let me go they had me move to a new position and they eliminated that position.

    I think their non compete is nonsense. What are your thoughts?

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    1. Hi Mike. Here in Florida, the fact that you were terminated wouldn't affect your noncompete obligations. You might want to check with a NJ lawyer to see if you have more rights there.

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  22. Hi Donna - I was working as a staffing specialist for a staffing company in Jackson, MI. Of course i was asked to sign a non-compete. I was hired 4/2012 and my position was eliminated due to "budgetary reasons" on 11/2012. I now want to work as a receptionist at a very small staffing company I was working for before I started working for the company I was laid off from. My primary responsibilities would be answering their telephone and greeting applicants as they come in to fill out applications. That's it. I let my former employer know that I have a non compete. Of course they are concerned they could be sued. Is this enforceable? Yes it a staffing company, but I'm not doing anything but answering telephones.

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    1. Hi Maria. It sure doesn't sound like they have a legitimate interest to protect, but I'd suggest talking to an attorney in your state about it. Good luck!

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  23. Hello Donna,

    I was fired last year based on lies a co-worker made to our employer. My former employer is now enforcing a non compete I was forced to sign prior to employment that doesn't allow me to work in my professional field anywhere the company does business, I have had numerous job offers resented due to the non compete. Plus they have stated the process to sue me in federal court without any proof what so ever as there is nothing to prove. I won a transfer to my home state, and am awaiting a court date to dealing with these false charges.
    What can I do about the co-worker that lied and caused my termination? Slander suit or civil? I am still unemployed, broke and now facing foreclosure along with mounting stress of all this I have gain 20 pounds, don't sleep very well. Your thoughts on counter suing employer or co-worker?
    Thanks Unemployable

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    1. Hi Unemployable. I'm catching up on answering questions to old posts. Your question will be answered on Monday here: http://employeeatty.blogspot.com/2013/07/can-i-sue-lying-coworker.html

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  24. Hi Donna,
    I am switching jobs and going to another company who is a potential competitor to my current employer. There are clients at my current employer who are asking me if they can come to my new employer because they want me to provide them the services. I do not have a non-compete with my current employer. Should I encourage the clients to come to my new employer and it's asking for trouble.

    Thanks!

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    1. Hi Arsalan. Since this post is three years old, I posted an answer to your question here: http://employeeatty.blogspot.com/2013/06/answers-to-your-questions-on-noncompete.html

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  25. Hi Donna
    I work in jackson Wyoming in decorative concrete eork i signed s non compete with my employer and he has been dropping the ball by nouncing payroll checks not only to me but to vendors and so on. I just found out he is trying to sell the company and alot of his clients are asking me to do their future jobs what do i do or can i do to be out of this mess. Oh and he has decided to not pay overtime and bank our hours even though we refused because we never collect them all.

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    1. Hi DJ. Your answer is here: http://employeeatty.blogspot.com/2013/07/more-answers-to-your-noncompete.html

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  26. Hi I work as an Appliance Tech my employer told me if I quit or get fired or look for another type of field that I can not work as an Appliance Tech for another company is this true

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    1. Hi Carl. That all depends on the facts in your situation. I'd suggest talking to an employment lawyer in your state. You can find an employee-side employment lawyer by looking here: http://www.nela.org

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  27. question I signed a non compete in kansas my company moved to Missouri. I this enforceable now?

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    1. Hi Private Investigator. Your answer is here: http://employeeatty.blogspot.com/2013/07/more-answers-to-your-noncompete.html

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  28. Hey, I live in ohio and im currenlty under a non compete for demolition and asbestos abatement. I basically forced to sign when he said "sign or I cant employ u any longer" since then my hours have dropped off the charts only receiving 16-24 hours a week making 13 $/hr, clearerly not enought to provide for my 16 month old son! I feel like I could some how get out of the non comepte due to the lack of hours provided but I dont know.

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    1. Hi Chris. Your answer is here: http://employeeatty.blogspot.com/2013/07/more-answers-to-your-noncompete.html

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  29. This comment has been removed by the author.

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  30. Hi I signed a contract with a company that states I cannot work for myself, or any other company in my line of profession for 1yr, sports coach in nursery's. My contract is up in may and my boss has moved to america. Since being over there he has messed my wages up n hardly replies to my emails. The nursery's are not contracted with this company and I would like to take them on myself. If they tell the nurseries to tell my company they gone else where and I took over,where do I stand?

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    1. Hi Lee. My reply to this will be up on August 30.

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  31. my former employer wrote such and ambiguous non-compete that it virtually eliminates any chance of me finding any employment in my field. Plus they owe me $9500 and say they won't pay unless I provide them with proof I'm not competing.

    They made exceptions to the non-compete during my employment and now say that I'm violating the agreement by continuing to do the exceptions that they allowed.

    They are in Illinois - I am in Florida.

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    1. Hi Mr. H.S. My reply to this will be up on August 30.

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  32. Sounds like this is more of a hot topic than I knew. I am a victim also--I started working for company x in March 2004, a while after I started the manager's position came open and they offered it to me. I am pretty sure it was at this time they made me sign a non compete. (I am contract labor) The company that owned the building I was working in then was purchased by another company. In 2008 this building closed down and I transferred to another building. About 6 months later I was again asked to sign a non compete. Now the company "x" that I work has lost their contract in the building so I am being told because of the non compete I cannot stay and do the same type of work (housekeeping, laundry, or dietary) for the new company. I applied and was going to be hired by the company that owns the building for a totally different type of job, but they are now saying they have a "policy" that states I cannot work for them for 12 mos. then have to reapply, when I was originally told by my supervisor that I could do any other job in the building other than the services they provide. Now that has changed. So, now am waiting for an answer from the new company as to whether or not they can get me out of the non compete--which is slim to nothing chance. If not I will be looking for a new job and am restricted can't do the three jobs listed above, OR work in any of the buildings owned by current building I'm in. I live in a rural area where there are virtually NO JOBS so I may be in the unemployment line because of this stupid non compete! I will never sign one again. The only reason I did is it was in lieu of a raise ha ha so called raise--I think the raise was about 15 cents! I can't afford a lawyer to fight this, and it makes me think is it really worth it--do you really want to fight to work in a building that doesn't want to fight to keep you?! I might mention too, I am 49 pushing 50, who will hire me? McDonalds? closest McDonalds is 40 miles away! I'm totally screwed!

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    1. Hi Tired. My reply to this will be up on August 30.

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  33. Hi . I am a nurse , licensed in the Commonwealth of Ky . I had worked 6 plus years with a contact agency that was contracted to The " State " . My question is this - When an agency is " contracted " to such an entity , and follows that state's protocol for the signing of State documentaions , such as policy and procedure for various guidelines , protocol , reprimand / disiplinary action , etc. , isn't that agency " supposed " to be aware of such policy and proceedure r/t requests that can be made in defending the position of their employees ?
    I had been a very well respected and appreciated employee that had been contracted to the same entity for over 12 years - outlasting all previous contractors that had either gone belly up , or lost their contracts .
    When I was both working full-time and caring for my Father at home , who was close to ending his earthbound journey , I had periods of tardiness ... which was never a past problem , and was ultimately released by both the Vendor and my agency .
    My question is this ... as my agency also has an obligation in serving my intrests as well - I feel - you know , symbiosis and the like , and as I was obviously under duress with my situation , was it not my agency's place to request - on my behalf - FMLA ?
    Please note that at NO TIME did my agency contact me in relation to the issue of my time and attendance ... which they were known to contact and consult other employees r/t other issues .
    Also note that I did win judgement against them for unployment ... So if the State Mediator deemed my claim acceptable ....then where does this leave me at this point ? Would I still be bound to my former agency's full no-compete ?

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    1. Hi Gloria. An answer to your question will be up on September 13.

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  34. Hi Donna,

    Noticed you haven't posted since January, so I'm not sure if you're still here or not, but here's my issue:

    I live in Broward County and work for a barter/trade company and we have approximately 400 local members in our network across all different types of businesses. I signed a non-compete when I was hired in July 2012 and am looking to get out for different reasons. I have been approached by a number of current members to work for them. Below is my non-compete verbatim and I'd like to get your thoughts on whether or not this would hold water if my current employer decided to try and enforce it.

    "Your duties are of a special and unusual character, and you will have access to confidential information of a special and unique nature and value relative to our members. This includes their account balances, contact information, banking information, credit card number and transaction history. As a condition of your employment, you agree that for a period of 18 months after your employment ends, you will not directly or indirectly solicit any business relationship with any member; nor will you be employed by any member (past or present), nor provide services to any member (past or present), nor will you accept employment or provide services to any of our competitors in Dade/Broward/Palm Beach counties; nor will you divulge any confidential information.

    In view of the irreparable harm and damage which would occur to the company as a result of violating the paragraph above, the company shall have the right and you consent to the issuance of both temporary and permanent injunctions enjoining you from violating any of the above paragraph. You furthe specifically agree that the company shall be entitled to obtain either voluntarily from you, or from a court of competent jurisdiction, $20,000, as liquidated damages and not a penalty, for each breach of the above."

    Your thoughts please. Thank you in advance.

    ReplyDelete
    Replies
    1. Hi Ken. I post pretty much every week on this blog. This post, however, is 3 years old, so I haven't checked it in awhile. I've been answering some questions on older posts. I answered some from this post here: http://employeeatty.blogspot.com/2013/06/answers-to-your-questions-on-noncompete.html. It sounds like you have a specific legal question that would require review of your contract. If that's the case, you can contact me as a lawyer (instead of as a blogger who posts publicly) here: http://www.ballmanfirm.com

      Delete
  35. Hi, nice post. Well what can I say is that these is an interesting and very informative topic. Thanks for sharing your ideas, its not just entertaining but also gives your reader knowledge. Good blogs style too, Cheers!

    non compete lawyer ma

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  36. I was asked to sign a noncompete, & when I did was informed that my wages were being cut. No wages were specified in the contract, but had I known beforehand, I would not have signed. Also, less than a week after I signed it my hours were cut & have since been cut to zero. I have since signing, been in a hostile work environment & made to feel I'm doing everything wrong. I am now at zero hours. & I also believe I have grounds for a discrimination & sexual harrassment case.

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    Replies
    1. Hi Tessa. An answer to your question will be up on September 13.

      Delete
  37. Awesome post:
    I work in Texas and I am reviewing a NON-Competition agreement withe the following stipulations:

    1.3 Non-Solicitation-Non-Competition. Without prior written approval of COMPANY X management, Consultant agrees:


    (a) For a period of twelve (12) months following the termination of this Agreement or the relationship provided hereunder, Consultant will not, either directly or indirectly, call on, solicit, or induce any Consultant or employee of COMPANY X whom Consultant had contact with, knowledge of, or association with in the course of this relationship to terminate his or her employment with Company X.
    (b) For a period of twelve (12) months following the termination of this Agreement or relationship provided hereunder, Consultant will not form or hold an interest in any entity that directly competes with COMPANY X.
    (c) During the term of this agreement for a period of twelve months following termination of this agreement with COMPANY X, Consultant shall not solicit or induce, any past or current customer of COMPANY X to cease doing business, in whole or in part, with COMPANY X.

    Is this legal to create this kind of document--affecting a persons livelihood for an entire year? If that company lays me off can they stop me from pursuing my line of work?
    Would you suggest a strategy for filling out this paperwork?
    Love your artical--very informative--thank you.

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    Replies
    1. Hi Steve. Thanks! I'm so glad you enjoy my blog. An answer to your question will be up on September 13.

      Delete
  38. My employer has filed for chapter 11 bankruptcy and is reorganizing. Does this also invalidate their employment contracts?

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  39. I've worked for my current employer for 8 yrs and have had a great relationship with them. It's a fortune 500 retail company and I work at their Homeoffice. The work I do is first level tech support on other internal employees pc's so I don't deal with external customers. Our next level support has unfortunately been contracted out for years. I'm an hourly "helpdesk" associate and basically considered a peon in the area. But because of the area, I have had the privilege to see what other teams do and nothing is what I'm interested in. I want to move up in what I already do... But non-compete keeps me from going to the contract company, which is the logical next step for me. Their rule is 3 yrs and I did reach out to our ethical dept. to get the ok to leave but I was denied because they think I know internal secrets which in fact the contracted company has more hands in secret things than my team does. They test new apps, we just fix issues, and most times they are the ones that teach us how. It's just that we are such a big company, they don't care to see differences in certain areas so they apply a blanket "no" to all exceptions basically instead of actually putting forth the effort to prove there isn't a conflict of interest. I feel so abandoned basically. I mean I would still be supporting the company, just in a third party way. Still playing for the same team tho. Just wished they saw it that way too. I have heard of the idea of a "bridge" job. Basically get a job in the field but not anything that conflicts and stay there for a few months then go to the contracted company. I need expert advice if available. Thanks in advance!

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    1. Update, I have since been fired from this employer for missing too much work due to health reasons. I of course would like to go to the previously stated contracted company I originally wanted to go to but I want peace of mind that my previous employee won't pressure them to fire me too. Plz advise :/

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  40. Hi my brother is trying to leave this web design company and they where supposed to pay him for staying 2 more weeks on his job because he didn't want to just leave so he gave a notice that hes leaving and on the final week they asked him to sign this contract where he would not work in his field for 2 years and would not work for the competition otherwise he would not get paid for the last couple of days. He didn't sign it yet, hes going to his lawyer first but still...what do you think he should do? Also he is a undergraduate in web design and as much as he wishes to leave the company in good terms I am afraid it may not be possible because he lives alone and is paying for his own education and not being able to work on his field that would be horrible.

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  41. Hi I came here in the u.s. with a working visa(h1b) but the plan is I have to take and pass the exam however I didnt pass the test so I went back to my home country.after a month I came back here in the u.s. with the same visa to take the exam again however this time all expenses paid by me. After my exam I decided to stay and married my bf but the agency started threatening me and my family in my country to sue me and family and pay a big sum of money for breaching my contract with them.is there any way I can deal with this agency without having to pay the big sum of money that they claim they had spent for my application papers with them? Your answer is greatly appreciated.

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  42. Hi, Donna

    I took a job 31 months ago in south Florida and moved from PA to Florida for the new job. On my first day after I moved my family down and sold our property in PA, they insisted on a signed non- compete. It was not in the offer letter and was not known until the first day of work. I hear that this is legal in Florida? I left that employer, and asked HR for a copy of my signed non- compete to which they replied in writing that I never signed a non compete only a non disclosure/ confidentiality agreement and sent me a copy. It clearly states that it is a non- complete agreement with a duration of 12 months. My new employer was not a competitor when I left seven months ago but next month closes on the purchase of a competitor. I took the job with all good intentions of complying with the non compete even though they wrote I didn't sign one and had nothing to do with my current employer purchasing one of their competitors. Where does this leave me?

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  43. I resigned from my job three weeks ago. I was forced to sign a non compete in 2009. My question is, is it still valid as I was laid off by this employer in December 2011 and collected unemployment insurance until I was called back to work by this employer. I did not sign another agreement upon returning to work, is the 2009 2 year non-compete expired?

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  44. I was laid off, I sign the termination the same day,4 days after I went to my workplace to pick up my paycheck, I was asked to sign another termination agreement which included a non competition agreement. My question is : Is this agreement valid even though I was not their employee for 4 days

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  45. What are ways around a no compete clause if i open my on company?
    I work for a home health agency as an indepedent contractor doing home health work. The client want's to hire me directly instead of having a middle person. However, in her contract, it says she can't hire any caregiver on directly that was referred through the company. If i start my own business with my fictious name, will she be able to hire my company and i work for her? I was going to start before i was hired with the company. Basically the company hired me and refer cna's to the clients. The client pays 16.65 and i get paid $10 out of it. I'm the one doing the work. How can I get around it?

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  46. Hi Donna, I am in the State of PA and had signed two year non competes to get options grants. I left the company under a voluntary separation agreement and part of it was a 1 year non-compete Agreement. Question is does the latter 1 year non compete supersede the 2 year Agreement. Also the Agreements are broad and cover the entire globe - what if I have not worked in the potion of the globe where I may work for the last two years?

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  47. i signed a non compete for a cleaning service that i work for. was mandatory well after i was hired and was afraid to lose my job at the time. now i am ready to go off on my own, i have this hanging over my head. Is there anyway to get out of it?

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  48. I truly need some legal advice from someone who knows the law, especially Maryland law. Back in 2012, I was given a client in a home health that flourished into a deep friendship (wife and husband adore me and look at me as a close friend of the family). However, when they wanted me to have time off, I was working 7 days a week/ 12 hours a day, the company couldn't find no one to take over weekends to give me time off for school or anything I may had pressing. So, the wife and client moved to another home health agency taking me along with them (the man who ran the agency offered more money as a persuasion). Now, subsequent to three coordinators, the company I formerly worked for hired a woman whom I really didn't see eye-to-eye with on a lot of things. Nevertheless, when I took a weekend vacation to visit my mother, things went wrong for me and I was placed in a precarious position of losing my job and clients. However, when I came back home, my employer said he wouldn't fire me if I were to sign a non-compete form. Now, when I was given this form to sign, I asked if this was a form that will prevent me from working in any other home health agency if I wasn't happy working for them any longer; the coordinator told me "no it wasn't, but it was to protect them from me taking clients from them." Being a person of ethics, I informed them that if I quit or went to another agency, I had no intentions of taking away their business because 'karma' has a way of coming back to bite someone in the ass. Things went well for me for a few weeks, but then a gold mine struck, and I was placed with a client that I thought I would be able to handle. WRONG! At 5' 9" / 240lbs, but heavier considering he was dead weight, with an attitude of Leona Helmsley, I couldn't deal with this client and put in my resignation a week prior to my actual quitting. The coordinator apparently ignored this warning and, instead of trying to find someone to replace me, left things as they were. I faxed my formal statement of resignation to my boss and now my check is being held- preventing me from paying bills I had already assigned to be paid on that day.
    Now, the thing I need to know is; is this legal and do they have a leg to stand on?

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  49. Thanks for the great information first and for most. I myself signed a 6 month non-compete agreement and that chicken has come back to roost. I took this job about 6 months ago becuase i was desprate to get out of a job I hated. I took a sizable pay cut and loss all of my benefits in the process but I figure hell it was worth it. I love what I do now and in 6 months I recieved an offer from the company for another position that pays about $11 more any hour. My contract company tells me we can get you the position but your only going to get half that pay increase. How shitty is that? Due to non-compete they say I can't go to another contract company that would give me the full amount plus benefits.

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  50. In 2012 my husband started working for a contractor. As a subcontractor he signed a subcontract agreement. In which case has schedule of payment as 45 days net and the non compete agreement. As he did sign it but in bold letters it states THIS IS NOT A BINDING CONTRACT AND CAN BE TERMINATED ANYTIME FOR ANY REASON. In 2013 he got let go because they butted heads. (not because he did bad work). Its now been over 125 days and yet still no payment. Does that mean the non compete still applies?

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    Replies
    1. Hi Liz. I answered your question today here: http://employeeatty.blogspot.com/2014/02/if-your-contract-says-it-isnt-contract.html

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  51. Hey Donna,

    I live in FL also, and I signed a non-compete form when getting my job in July. I was given the option to regisn, but I refused so I just assumed they fired me. Even though there was no real evidence of either- so I could fight it either way. Anyways I was reading the non-compete agreenment I signed, and it states "the employee agrees that during the term of his/her employment and for two (2) years after the termination of his/her employment, Employee shall be prhibited from competing with Employer and working in the same or a substantially similar busiess nationwide." So if it only states based on "termination" and I could technically say I was fired.. Does my ex employer still have a case on their hands? They have already threatened me and my employer.. Also if it was a "big deal" why would they personally threaten me via text message? why didn't they have their attorney do that? Its a private owned business- that was the only one in the area like it.. and another similar business came into town last week- who hired me with no recognition of my occupation before. There's big differences in the compay. 1 of the companies is a school and autism center, and 1 of the companies is an early intervention program for behavior children. It's actually complete different occupations.

    I need some advice. this is already stressful enough

    -Oh Boy-

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  52. Hi Donna,

    I live in WA state. In 2009, I began employment with my former employer, a specialty retailer, as an entry-level part-time sales associate. After the offer was made, I signed a non-compete agreement along with other new-hire paperwork. In 2010, the company stopped requiring new employees to sign this paperwork. I was promoted 3 times, eventually to store manager and never had to sign another agreement besides the one when I was hired. My former employer was not paying reasonable wages, so I quit 4 months ago and went to a completely different field. Now, I have been offered an assistant manager position with the former employers biggest competitor, with an offer much more generous that my former employer. My question is if the non-compete is still valid, as none of the employees with the former company were required to sign after 2010. I did disclose this info to the new prospective employer and they do not seem concerned about a conflict.

    Thank you so much!

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  53. Donna;
    I am a sales representative for a distributor in Kansas. The NCA I signed has some very typical requirements upon termination by EE or employer. The company is in the process of merging with another company that is perceived to be one of my current employer's primary competitors. Currently, the NCA agreement resides under the parent company of my current employer. It has been stated as fact that upon the successful completion of the merger, that the "new company" formed by the merging of our company and our competitor, will become a solely owned, publicly traded company no longer owned by the current company's parent company. Upon the presumed merger, and the "new company" is formed, will a new NCA or supplemental addendum need to be signed by current EE's re-establishing the NCA is now valid under the "new company"? Secondly, if an EE chooses not to sign the "new company" addemdum, or completely new NCA, if one is requested to be signed, and also leaves the "new company", is the previous NCA, under the parent company still enforceable to the terminated EE? And lastly, is the current NCA simply "transferable" to the "new company" policy(ies) even though it was written to be enforceable under the previous parent company that is spinning of the current company? It has been stated that the current NCA will simply transfer to the "new company" guidelines and regulations and continue to be enforceable?
    Also, the current NCA encompasses the inability to be employed by any perceived competitor, customer, or any business associated with current company for a period of 12 months and within a radius of 100 miles of the current employer's physical location. Conceivably, this will limit the EE's ability to work within the industry and subsequently earn a similar living and income that one has worked within for more than 25 years...is this a valid NCA claim and/or requirement? Within that statement, the physical location of the current emplooyer has changed to a different city within the same state and there has been no presentation of a new NCA with the new physical location. Is this a potential point that could invalidate the current NCA?
    I appreciate any feedback and advice.

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  54. I need to know how can an Ex Employer accuse you of competing. I have a Construction for many years before working for them. The only reason why I did was cause I was getting separated from my wife so I couldn't concentrate on business anymore. Now that being said I have some of my customers that I had brought on the table to help them out since I was not operating. Their suppose to give me a % on all work that they perform for them. Since they had laid me off I haven't seen any of my promised % and their trying to sue me stating that I'm taking their customers (my customers). Now this has me really upset for the reason that I'm not making any money and their trying to sue me.Now the reason behind this is also a Sub Contractor that I brought on board to work for them that is a friend as well is not working for them but does have and account with one of my customers that I brought on board. And all because the builder didn't want to give them the work anymore cause he was doing everything by himself so they figured to get rid of the middle man. Now I don't see anything wrong with that as well because I had told my employer if they don't take care of my customers they will replace them so they did.Now I need some suggestions on what I can do. Really need some other advice. Thanks

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  55. I recently resigned from a company that I started working for in January of 2011. In August 2011 they had me sign a non-compete agreement. Since then the company has been involved in a merger and the management of my district is from the acquired company. Before the merger the other company was considered direct competition and before i left was under the management of the acquired company and was not being treated the same as the people from the acquired company. I am one of several people that left to work for this other company, some were on non competes and others were not, and I am the only one being sued. I feel like I am being singled out. The company has one policy but seems to have several different procedures and ways of going about things depending on what side you are from. My question is do I have a case if I can prove that they left the other people slide. Some were on the non-compete agreements and others were not. I am in the state of Wisconsin

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  56. Hi Donna:

    I signed a employment agreement with a non-compete within this agreement back in 2011. My employer gave me a document saying they terminated this agreement effective February 3, 2014. I received this notice personally February 4, 2014. They wanted me to sign a new one and i refused due to extending the non compete by another year. Is 2011 agreement still valid if they terminated it? Help..thanks.

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  57. I live and work in Nebraska and I signed a non-compete agreeement with a small wedding officiant business in order to perform wedding ceremoines as a licensed officiant. The non-compete states that I am not to work for a competitor or start my own wedding ceremony business for 2 years after my employment and it can not be within a 50 mile radius. I performed a handful of ceremonies and now the business owner has decided to shutdown her business due to personal and family issues.This was affective immediately. I would like to know if I am still tied into the non-compete clause with the current turn of events. I would like to entertain the option of possibly starting my own officiant business. Any advice you can offer is greatly appreciated.

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  58. I worked for an ecig company, which at the time of employment in was desperate for work. They asked me to sign a no compete in case I received trade secrets. I was also promised a raise after 90 days and opportunities to advance. The owner even hired me a lawyer for outside legal issues which I'm still making payments on. Little did I know this was a trap to keep me feeling like I owed her and allowed her to treat me very badly for many months, cussing, name calling, even throwing stuffing. Finally I said if they don't give me a raise and promote me like promised I'm leaving because I may love my job but not the way I was treated. So I left. Now a juice manufacturer wants me to work as a lab tech creating these juices. I'm no longer a sales associate and not doing anything like I was at the old place. It's been 5 months and I was a waitress this entire period in between. Now she's having people stalk my fb and find where I work. Saying if im working for competition she'll sue me. Florida is also a right to work state. And I still have nasty mean texts from her after I quit where she acknowledges that I wasn't feeling welcome there due to mistreatment. Does she have a case here?

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  59. Good day.

    I work for a contractor doing work for bhp billiton, Middelburg ,Mpmulanga, South africa.

    I have got a non compete emloyement contract that states that I am not alloed to work in the same area line of work for Bhp Billiton South Africa for a period of two years.

    I have a job offer from the mine self, and would just like to know it it is a viable choice to concider the job.

    I am I instumentation technician working on wi-fi networks and production systems like caes and aquila drill and fleet managing and monitoring systems and pegasys drgline monitor.

    None of the experience I obtained from the company is a trade secret, and the skill can be obtained from online cources. I got all my knowlage from field experience.

    In the past a colleague took the job offer from the mine and there was no legal action taken.

    My boss however states that he changed the clause.


    Please help me........

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  60. I work in Vermont and signed a non compete with my former employer almost 12 years ago now. They then sold the business to another party as of January 1, 2013. I am wondering if the non compete I signed with the original owners carried over to the new owners?
    Thanks for any help or advice you can offer.

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  61. Hi Donna,
    I never signed a non compete, but my previous employer said that he doesn't need the non compete to hold up in court because he has people in the office that will say i did sign the non compete, Is this even something that will hold up he decides to take me to court?. please email me if you would cassie0812@mail.com

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  62. hi donna-kansas-My old company terminated my contract with them. Now that I have started working with another company they have emailed me a cease and desist letter. Attached to the email was a non compete agreement. I do not have a copy or the original agreement as my desk was cleaned out while I was not at work the day before my termination. I do not remember if the attached non compete is the one I originally signed. It is a 4 page agreement and the only date on the form is on page 1 in type. What looks to be my signature is on page 4 but there is no handwritten date nor are any of the previous pages date or initialed. Can this non compete hold up in court considering the date and amount of time the non compete is for could have been altered and the original page 4 kept? I only suspect this as the manager and this company are very deceitful, conniving, and untrustworthy. I signed my independant contractor agreement in March of 2013 but the date on the non compete is June of 2013. Do I have anything to fight back with or use in court on my behalf?

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  63. Hi Donna, In order to keep my job, I signed a NC in Sept 2007. For signing the agreement, all employees were promised ( in writing) a 1 time bonus of $1000 due to be paid ath the end of Sept but, actually wasn't paid unti October. After 8.6 years of service, my position/territory has been eliminated effective today 6/13/14. I am the primary bread winner & have been for more than 10 years. Although I hold an LPN degree, I am unable to get a job with a comprable salary outside of what I was doing with my previous employer. I am a black female, over the age of 50 & had been the only black person in the state of Florida holdng this position since my tenure. In order to obatin my severance money, I have to agree to uphold the previous agreement & work outside of my field for 1 year, if I decline the money/agreement I forfeit the severance & the agreement still stands. Again, forfieting the severance and working in a totally different capacity will surely put me and my family in a financial hardship. Any suggestions?

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  64. Hi Donna, I signed a NC in Sept 2007 (it was either sign it or you were terminated). with signing the NC, all employees wer to recieve a $1000 onr time bonus to paid out the end of Sept 2007. The monies wer actually paid out Oct 2007. After 8.6 years of service my position as been eliminated effective today 6/13/14. In order to recieve my severance money, I must sign an additional agreement upholding the initial agreement that I will not work in my current field for 1 year. I have been the primary breadwinner in my family for more than 10 years. I am a black female, over the age of 50 with an LPN degree. Although I could probably obtain alternate employment, nothing outside of what I was doing for my previous company is going to pay me anything close to that salary. I don't sign the agreement, I forfeit my severance money and if I do sign it, I must find a job taking a substantial pay cut. Based on the current job market, either situation will put my family in a difficult financial situation...Any suggestions? I kmow in seeking employment in my current field, I jmust disclose the NC. I had been the only black person in all of So. Florida in that position for my tenure.

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  65. Hi, I have a 4 year nationwide non compete. My other business partners had/have a 2 year non-compete restricted only to the states that surround Kansas (my home state). All other employees that worked for the company had non-competes and had been paid for them. They have never enforced a non-compete until me and I am now 90 days from the end and went to work for a competitor. The other employees went into direct competition and/or to work for a competitor right here in my home town. Since I am the only one that they have chosen to go after, wouldn't that be discriminatory and in addition to that, like I stated, mine was for 4 years and nationwide. I had to move to Australia and Asia for the past four years just to abide by the terms. Then I find out all these other people have non-competes and have never been enforced. They filed a restraining order yesterday and have set a court hearing for next week for a temporary and permanent injunction. Everyone I talk to says that because no one else's were enforced and that my duration and territory were so unreasonable that a judge should throw it out on it's head. What do you think?

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  66. Greetings, I have signed a non complete when i first joined my firm and i don't even recall what it entails. Since then, at least three people have left for new positions with different direct competitors, and the managing director never enforced the non compete. Since then there have been a couple of comments about enforcing it if I were to leave. I have no immediate intention of leaving, but all jobs end one day. What do you recommend i do to protect myself? Thanks!
    PS i am in a business development role and key financial contributor to the firm.)

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  67. greetings, i signed a non-compete but i don't have a copy. i don't want to request one b/c i don't want to raise suspicions. i'm leaving this company to expand upon their crappy training by taking real certification courses, and creating a different business model with different clients. would that still be under the condition for non-compete? thank you

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  68. Hi i was wondering if my employer is allowed to make me do other jobs that are higher then my pay grade

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  69. Hi Donna,

    I'm being asked to sign a non compete/non disclosure agreement with a company for contract labor. The agreement seems unenforceable. The verbiage is beyond broad! It basically says I can't work for or engage in business in anything relating to audio or video in any capacity for a period of 20 years, anywhere in the world. I'm in Florida, they are in NY. My question is, should I just sign it believing it is unenforceable?

    Thanks
    Wayde

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