+ Reply to Thread
Page 1 of 2 12 LastLast
Results 1 to 15 of 17
  1. #1
    Joeln1532 is offline Junior Member
    Join Date
    May 2012
    Posts
    9

    Exclamation Can I get another job with this non-compete?

    What is the name of your state (only U.S. law)? Massachusetts

    I am 20 years old and have been working for this cellular phone sales company for al most a year and 4 months. Upon being offered the job they prompted me to sign a non-compete/confidentiality agreement which i have attached(no address or company name information included). I am payed 8 dollars an hour plus commision. Recently a previous employer in cellular sales has offered me a job part time which pays 11.50 an hour, plus monthly bonus for incentive(Best Buy Mobile). Due to working in sales and most recently cellular sales for a combined total of over 3 and a half years, sales(specifically electronic) sales is all I really know. The non-compete agreement is quite strict as it states A very large geographical area in which I cannot work in cellular sales for 2 whole years!!! Being a college student a good paying job is important to me and is a great opportunity.

    The current listed business location of where I work now is Mansfield, the potential employer(Best Buy) listed location is South Ritchfield, MN. Currently my store has a few locations, one of them being in extremly close proximity(three store fronts) with the potention employer. Other employees have said numerous people have left and gone worked for other cellular companies, and my small company( only has 3 stores) did not pursue legal action, but no other employees that left have been in such close proximity with their new employer. I know they would know I am working there just by walking by.

    My question is simple I guess. What should I do? Should I take this offer? Would there be legal reprecussions? Would I lose my new job if it went to court? Would I be able to afford court?

    Please help, im in need of expert advice.

    Thanks!


    Here is the agreement





    In consideration of Employee’s employment but not as a guarantee thereof, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledge, Employee agrees:

    Only competetion covenant listed.

    2. Non-Competition Covenant

    (a) During Employee’s term of employment with the Company and for a period of two (2) years thereafter (or any extended period as provided below), Employee shall not directly or indirectly Compete with the Company in the following area: The AT&T New England Market – including Massachusetts, Rhode Island and Connecticut (hereinafter “Restricted Area”).

    For purposes of this Agreement, “Compete” means to solicit any employee of the Company to join any other entity or venture or to be involved directly or indirectly as principal, agent, owner, stockholder, partner, joint venturer, officer, director, employee, consultant or in any other manner with any business, individual or entity that develops, makes, manufacturers, offers or sells any of the products or services that the Company offers or sells or which are competitive with the products or services offered or sold by the Company, excepting only the ownership of less than five percent (5%) of any class of securities of any publicly-traded entity.

    Employee acknowledges that the Company conducts business, offers and sells products and competes with companies located in the Restricted Area as defined above. Employee further acknowledges that Employee’s job responsibilities and knowledge of the Company and its markets and business relate to and affect the Company’s ability to compete in, and to maintain its goodwill in, the Restricted Area making it appropriate to define the Restricted Area as defined above for the purpose of fairly protecting the Company’s goodwill, business interests and substantial economic investment in that Area.

    (b) The term of the non-competition provisions set forth in Paragraph 2 of this Non-Competition Covenant shall be extended by the length of any:

    i. breach by Employee of any of the terms of the Confidentiality Non-Competition Agreement; or
    ii. litigation between the Company and Employee involving the terms of this Confidentiality and Non-Competition Agreement (whether initiated by Employee seeking relief from, or the Company seeking enforcement of, any of their respective terms.

    (c) Employee acknowledges that, were he or she to breach the provisions of this Non-Competition Covenant, the injury to the Company would be substantial, irreparable, and impossible to measure and compensate in money damages alone. Employee therefore agrees that, in addition to any other remedies available at law, the Company may seek, and agrees that a court of competent jurisdiction may grant, preliminary and permanent injunctive relief prohibiting any conduct by Employee which violates this Covenant.

    BY SIGNING BELOW, EMPLOYEE ACKNOWLEDGES THAT HE OR SHE HAS READ THE ABOVE NON-COMPETITION COVENANT AND FULLY UNDERSTANDS THE LIMITATIONS IT PLACES ON HIS OR HER ABILITY TO COMPETE WITH THE COMPANY


    ____________________________
    (Employee)

    3. Third Party Information.
    Employee agrees to protect any information in whatever form entrusted to him as an employee of the Company which constitutes the Proprietary Information of another party. If such property has been placed in the Company’s care by that party and Employee is in position to know that the Company has taken upon itself an obligation to protect such property, Employee agrees, in writing if requested, to protect such information and to adopt any special procedures or methods to protect such information as may be required by the Company agreement with such party. Employee agrees that any such information shall be treated as Proprietary Information under this Agreement.

    4. Remedies.
    Employee acknowledges and agrees that any breach by Employee of any of the obligations imposed upon hard the Company’s business and goodwill and that the Company’s remedy at law for any breach of Employee’s obligations under this Agreement would be inadequate. Therefore, Employee agrees and consents that temporary and permanent injunctive relief may be granted in any proceeding which may be brought to enforce the provisions of this Agreement, without the necessity of proof of actual damage.

    5. Termination; Company Authority.
    Employee acknowledges that his or her employment is seasonal and the compensation, to the extent permitted by law, may be terminated for any reason, at any time, at the option of either the Company or the Employee without notice. Employee further acknowledges that no representative of the Company other than a corporate officer has any authority to enter into any agreement for employment for any specified period of time or to assure any other employment action, either prior to the commencement of employment or after he or she has become employed, or to assure any benefits or terms or conditions of employment or to make any agreement contrary to those contained herein.

    6. Policies and Procedures.
    This Agreement with the attached Schedule sets forth the entire agreement and understanding of the parties concerning the subject matter hereof and merges with and supersedes any and all prior agreements, understandings, and representations whether contained in other Company documents or otherwise. No representation, promise, inducement, or statement of intention has been made by or on behalf of either party hereto which is not set forth in this Agreement, and employment for any specified length of time or at any specified salary, wage, or compensation is not a condition to the enforcement of Employee’s obligations under this Agreement. The continuity of this Agreement shall not be affected by discontinuance of payment of salary, wages, or the other compensation to Employee during such periods as Employee is incapacitated from performing or is excused form performing work for the Company, or by changes made in Employee’s salary, wage or other compensation from time to time. The terms and provisions of this Agreement shall continue beyond the period of employment and shall be binding on Employee, Employee’s heirs at law, next of kin, distributes, executors, administrators, heirs, assigns and other legal representatives and shall inure to the benefit of the Company, its successors and assigns. The failure of the Company at any time or from time to time to require performance of any of Employee’s obligations under this Agreement shall in no manner affect the Company’s rights to enforce any provision of this Agreement at a subsequent time, and a waiver by the Company of any right arising out of any breach shall not be construed as a waiver of any right arising out of any subsequent breach. The paragraph headings used in this Agreement are for reference only and shall have no substantive effect in interpreting the meaning of any provision of this Agreement.
  2. #2
    Joeln1532 is offline Junior Member
    Join Date
    May 2012
    Posts
    9

    Cntd

    Also the reason why I original considered leaving this company is because I have proof(soon to be documented) that the company is partcipating in donation fraud( people come in to donate phones, they tell them they send them over seas and to battered womans shelters, they then take these phones and stock them in inventory as used/refurbished and sell them.) I feel morally responsible to confront this, and also morally obligated to cease working for the company because of this.
  3. #3
    swalsh411 is offline Senior Member
    Join Date
    Dec 2009
    Posts
    7,897
    The geographic and time limitations are far too broad to be enforceable. Do not take any proprietary information or customer lists with you. Certainly do NOT attempt to solicit customers of your former employer to switch. Do this and you should be OK.
  4. #4
    Stevef is offline Senior Member
    Join Date
    May 2006
    Location
    I dunno. What time is it?
    Posts
    6,260
    Although it seems that two years may be too long, Massachusetts Courts may blue-pencil the contract, and restrict the non-compete to a more reasonable timeframe (like one year).

    The problem with this is that litigating this would be expensive on both ends. You (and your former employer) can expect to spend somewhere between $50,000 and $100,000 on legal fees and costs.

    So although AT&T may not have pursued others who violated their non-compete agreement, that doesn't necessarily mean they won't pursue you, especially if you are flagrant about it and go to work for a competitor three doors down.
  5. #5
    Stevef is offline Senior Member
    Join Date
    May 2006
    Location
    I dunno. What time is it?
    Posts
    6,260
    Quote Originally Posted by swalsh411 View Post
    The geographic and time limitations are far too broad to be enforceable.
    Although some states will strike down a non-compete that is over-broad, Massachusetts is not one of them.
    Do this and you should be OK.
    Following this advice could be very damaging to OP.
  6. #6
    Joeln1532 is offline Junior Member
    Join Date
    May 2012
    Posts
    9
    Do you think proof of fraud could be a material breach of contract?

    Also, do you know how much it could cost the employer(3rd party ATT retailer) to initial file suit for breach of contract and to pursue relief?
  7. #7
    Joeln1532 is offline Junior Member
    Join Date
    May 2012
    Posts
    9
    If the contract is far to broad, due to the size of the company(extremely small) I do not believe they would pursue legal actions. They dont even go after people who steal phones from them. The president told me it costs far to much. Also can the state change the contract after the company files for the breach of contract? Wouldnt I need to consent?

    Another note here that I have also never received a lunch break my whole time working for this company. I have been allowed to eat on the clock, but have never received a lunch break of 30 minutes.
    Last edited by Joeln1532; 05-13-2012 at 04:02 PM.
  8. #8
    swalsh411 is offline Senior Member
    Join Date
    Dec 2009
    Posts
    7,897
    Quote Originally Posted by Stevef View Post
    Following this advice could be very damaging to OP.
    I don't think so. The OP is in a low level sales position. I am extremely skeptical his former employer would pursue the matter.
  9. #9
    Stevef is offline Senior Member
    Join Date
    May 2006
    Location
    I dunno. What time is it?
    Posts
    6,260
    Quote Originally Posted by Joeln1532 View Post
    Do you think proof of fraud could be a material breach of contract?
    No. The fraud was not against you, so it was not a breach of the contract with you.
    Also, do you know how much it could cost the employer(3rd party ATT retailer) to initial file suit for breach of contract and to pursue relief?
    I was involved in one a few years ago that cost the employer $12,000 to get through the preliminary injunction stage.
  10. #10
    Joeln1532 is offline Junior Member
    Join Date
    May 2012
    Posts
    9
    Wow. I have also been looking at the MA Blue Laws. Looks to me like working in retail. If an employer has 8 or more people work on any given day of the week(including the proprietor. So this automatically counts as one correct) that they then must pay any employee on a Sunday time& one half wages.

    I have NEVER recieved time&one half pay while working there despite that in the course of one day they employee 8-10 people.
  11. #11
    Joeln1532 is offline Junior Member
    Join Date
    May 2012
    Posts
    9
    Very sorry about spelling. Trying to do this from an iPhone.
  12. #12
    swalsh411 is offline Senior Member
    Join Date
    Dec 2009
    Posts
    7,897
    So file a complaint with your State's Dept of Labor. That is unrelated to your non-compete issue.
  13. #13
    Proseguru is offline Member
    Join Date
    Dec 2011
    Posts
    592
    Can you explain your commission pay a little bit more. At 8 bucks an hour a judge will laugh at the company too.
  14. #14
    Joeln1532 is offline Junior Member
    Join Date
    May 2012
    Posts
    9
    To be honest I am not 100 percent sure of my comission rates. There are a lot of factors which effect it and I was never given a paper to keep. Comission rates have changed as well they are much different from when I started working here. On an IPhone sale new activation with unl. Texting and 30.00 data. I am paid 7.99. Basic phones maybe like 5.00. And android phones can be upwards of 20. This company has very low traffic and I probably average an extra 50-60 dollars a week.
  15. #15
    Joeln1532 is offline Junior Member
    Join Date
    May 2012
    Posts
    9
    Though my only guaranteed pay is my base pay. Minimum wage.

Similar Threads

  1. Non-Compete
    By Roswell in forum Hiring, Firing & Wrongful Termination
    Replies: 1
    Last Post: 11-17-2005, 09:12 PM
  2. Non Compete....
    By buckle774 in forum Hiring, Firing & Wrongful Termination
    Replies: 1
    Last Post: 11-10-2005, 12:45 PM
  3. Non-compete
    By chamilton in forum Hiring, Firing & Wrongful Termination
    Replies: 1
    Last Post: 02-24-2004, 07:47 AM
  4. about non-compete
    By blizzardme in forum Hiring, Firing & Wrongful Termination
    Replies: 1
    Last Post: 01-26-2003, 05:44 AM
  5. Non-compete
    By salesguy5 in forum Hiring, Firing & Wrongful Termination
    Replies: 0
    Last Post: 07-23-2001, 07:30 PM

Tags for this Thread

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  

© 1995-2012 Advice Company, All Rights Reserved

FreeAdvice® has been providing millions of consumers with outstanding advice, free, since 1995. While not a substitute for personal advice from a licensed professional, it is available AS IS, subject to our Disclaimer and Terms & Conditions Of Use.