What is the name of your state? - OREGON
PLEASE NOTE: I have reproduced, at the end of this post, both the relevant section of the noncompete and the relevant Oregon Revised Statute.
I want to tell you about the last two jobs I have had, including the current one. They are both in the same state (OR), both in the same industry (the Industry of Foo),
I held job #1 between July 2005 and May 2007. I have held job #2 since May 2007. Yes - May 2007 (this month). I had signed an explicit noncompete with job #1.
I believe that the noncompete is invalid because I signed it in August of 2005, over two months after I was hired by job #1. It seems to me that Oregon law is specific. I refer you to ORS 653.295, the relevant parts of which I reproduce below (you can view the whole statute at http://www.leg.state.or.us/ors/653.html):
653.295 Noncompetition agreements; bonus restriction agreements; applicability of restrictions. (1) A noncompetition agreement entered into between an employer and employee is void and may not be enforced by any court in this state unless the agreement is entered into upon the:
(a) Initial employment of the employee with the employer; or
(b) Subsequent bona fide advancement of the employee with the employer.
The noncompete was not brought up to me until two months into my employment, and I was most certainly not advanced by my employer. I started and finished the job in the same exact position, with the same exact responsibilities. Although I received two merit raises while employed at job #1, multiple cases before multiple courts have demonstrated that this alone does not satisfy (b) above. I can supply links if needed to prove this.
AM I RIGHT? Am I safe? I believe that, because my noncompete was demonstrably not entered into upon my initial employment, nor entered into upon my bona fide advancement with the employer, it is void - I never had any bona fide advancement with my employer (part of why I left). Because of this, I think my employer from job #1 can't pursue me civilly at all - nor can he come after my current employer (job #2). This seems utterly clear and iron-clad to me.
Please let me know what you think.
Regards,
sacman
P.S. #1:
ORS 653.295
653.295 Noncompetition agreements; bonus restriction agreements; applicability of restrictions. (1) A noncompetition agreement entered into between an employer and employee is void and may not be enforced by any court in this state unless the agreement is entered into upon the:
(a) Initial employment of the employee with the employer; or
(b) Subsequent bona fide advancement of the employee with the employer.
(2) Subsection (1) of this section applies only to noncompetition agreements made in the context of an employment relationship or contract and not otherwise.
(3)(a) Subsection (1)(a) of this section applies only to noncompetition agreements entered into after July 22, 1977.
(b) Subsection (1)(b), subsections (4) and (5) and subsection (6)(a) of this section apply to employment relationships and bonus restriction agreements in effect or entered into after October 15, 1983.
(4) Subsection (1) of this section does not apply to bonus restriction agreements, which are lawful agreements that may be enforced by the courts in this state.
(5) Nothing in this section restricts the right of any person to protect trade secrets or other proprietary information by injunction or any other lawful means under other applicable laws.
(6) As used in this section:
(a) “Bonus restriction agreement” means an agreement, written or oral, express or implied, between an employer and employee under which:
(A) Competition by the employee with the employer is limited or restrained after termination of employment, but the restraint is limited to a period of time, a geographic area and specified activities, all of which are reasonable in relation to the services described in subparagraph (B) of this paragraph;
(B) The services performed by the employee pursuant to the agreement include substantial involvement in management of the employer’s business, personal contact with customers, knowledge of customer requirements related to the employer’s business or knowledge of trade secrets or other proprietary information of the employer; and
(C) The penalty imposed on the employee for competition against the employer is limited to forfeiture of profit sharing or other bonus compensation that has not yet been paid to the employee.
(b) “Employee” and “employer” have the meanings given those terms in ORS 652.310.
(c) “Noncompetition agreement” means an agreement, written or oral, express or implied, between an employer and employee under which the employee agrees that the employee, either alone or as an employee of another person, will not compete with the employer in providing products, processes or services that are similar to the employer’s products, processes or services for a period of time or within a specified geographic area after termination of employment. [1977 c.646 §2; 1983 c.828 §1; 1985 c.565 §85; 2005 c.22 §459]
P.S. #2: 9.
Covenant Not to Compete.
(a) I agree that during the course of my employment and for a period of eighteen (18) months immediately following the termination of my relationship with the Company for any reason, whether with or without good cause or for any or no cause, at the option either of the Company or myself, with or without notice, I will not, without the prior written consent of the Company, (i) serve as a partner, employee, consultant, officer, director, manager, agent, associate, investor, or otherwise for, (ii) directly or indirectly, own, purchase, organize or take preparatory steps for the organization of, or (iii) build, design, finance, acquire, lease, operate, manage, invest in, work or consult for or otherwise affiliate myself with, any business in competition with or otherwise similar to the Company’s business. The foregoing covenant shall cover my activities in every part of the Territory in which I may conduct business during the term of such covenant as set forth above. "Territory" shall mean (i) all counties in the State of Oregon, (ii) all other states of the United States of America and (iii) all other countries of the world; provided that, with respect to clauses (ii) and (iii), the Company derives at least five percent (5%) of its gross revenues from such geographic area prior to the date of the termination of my relationship with the Company.
(b) I acknowledge that I will derive significant value from the Company’s agreement in Section 2(a)(i) to provide me with that Confidential Information of the Company to enable me to optimize the performance of my duties to the Company. I further acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither to disclose nor to use the Company’s Confidential Information other than for the Company’s exclusive benefit and my obligation not to compete contained in subsection (a) above, is necessary to protect the Company’s Confidential Information and, consequently, to preserve the value and goodwill of the Company. I further acknowledge the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of the Company’s desire to protect its Confidential Information, and that I will not be precluded from gainful employment if I am obligated not to compete with the Company during the period and within the Territory as described above.
(c) The covenants contained in subsection (a) above shall be construed as a series of separate covenants, one for each city, county and state of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in subsection (a) above. If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a) above are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, then permitted by such law.
What is the name of your state?
PLEASE NOTE: I have reproduced, at the end of this post, both the relevant section of the noncompete and the relevant Oregon Revised Statute.
I want to tell you about the last two jobs I have had, including the current one. They are both in the same state (OR), both in the same industry (the Industry of Foo),
I held job #1 between July 2005 and May 2007. I have held job #2 since May 2007. Yes - May 2007 (this month). I had signed an explicit noncompete with job #1.
I believe that the noncompete is invalid because I signed it in August of 2005, over two months after I was hired by job #1. It seems to me that Oregon law is specific. I refer you to ORS 653.295, the relevant parts of which I reproduce below (you can view the whole statute at http://www.leg.state.or.us/ors/653.html):
653.295 Noncompetition agreements; bonus restriction agreements; applicability of restrictions. (1) A noncompetition agreement entered into between an employer and employee is void and may not be enforced by any court in this state unless the agreement is entered into upon the:
(a) Initial employment of the employee with the employer; or
(b) Subsequent bona fide advancement of the employee with the employer.
The noncompete was not brought up to me until two months into my employment, and I was most certainly not advanced by my employer. I started and finished the job in the same exact position, with the same exact responsibilities. Although I received two merit raises while employed at job #1, multiple cases before multiple courts have demonstrated that this alone does not satisfy (b) above. I can supply links if needed to prove this.
AM I RIGHT? Am I safe? I believe that, because my noncompete was demonstrably not entered into upon my initial employment, nor entered into upon my bona fide advancement with the employer, it is void - I never had any bona fide advancement with my employer (part of why I left). Because of this, I think my employer from job #1 can't pursue me civilly at all - nor can he come after my current employer (job #2). This seems utterly clear and iron-clad to me.
Please let me know what you think.
Regards,
sacman
P.S. #1:
ORS 653.295
653.295 Noncompetition agreements; bonus restriction agreements; applicability of restrictions. (1) A noncompetition agreement entered into between an employer and employee is void and may not be enforced by any court in this state unless the agreement is entered into upon the:
(a) Initial employment of the employee with the employer; or
(b) Subsequent bona fide advancement of the employee with the employer.
(2) Subsection (1) of this section applies only to noncompetition agreements made in the context of an employment relationship or contract and not otherwise.
(3)(a) Subsection (1)(a) of this section applies only to noncompetition agreements entered into after July 22, 1977.
(b) Subsection (1)(b), subsections (4) and (5) and subsection (6)(a) of this section apply to employment relationships and bonus restriction agreements in effect or entered into after October 15, 1983.
(4) Subsection (1) of this section does not apply to bonus restriction agreements, which are lawful agreements that may be enforced by the courts in this state.
(5) Nothing in this section restricts the right of any person to protect trade secrets or other proprietary information by injunction or any other lawful means under other applicable laws.
(6) As used in this section:
(a) “Bonus restriction agreement” means an agreement, written or oral, express or implied, between an employer and employee under which:
(A) Competition by the employee with the employer is limited or restrained after termination of employment, but the restraint is limited to a period of time, a geographic area and specified activities, all of which are reasonable in relation to the services described in subparagraph (B) of this paragraph;
(B) The services performed by the employee pursuant to the agreement include substantial involvement in management of the employer’s business, personal contact with customers, knowledge of customer requirements related to the employer’s business or knowledge of trade secrets or other proprietary information of the employer; and
(C) The penalty imposed on the employee for competition against the employer is limited to forfeiture of profit sharing or other bonus compensation that has not yet been paid to the employee.
(b) “Employee” and “employer” have the meanings given those terms in ORS 652.310.
(c) “Noncompetition agreement” means an agreement, written or oral, express or implied, between an employer and employee under which the employee agrees that the employee, either alone or as an employee of another person, will not compete with the employer in providing products, processes or services that are similar to the employer’s products, processes or services for a period of time or within a specified geographic area after termination of employment. [1977 c.646 §2; 1983 c.828 §1; 1985 c.565 §85; 2005 c.22 §459]
P.S. #2: 9.
Covenant Not to Compete.
(a) I agree that during the course of my employment and for a period of eighteen (18) months immediately following the termination of my relationship with the Company for any reason, whether with or without good cause or for any or no cause, at the option either of the Company or myself, with or without notice, I will not, without the prior written consent of the Company, (i) serve as a partner, employee, consultant, officer, director, manager, agent, associate, investor, or otherwise for, (ii) directly or indirectly, own, purchase, organize or take preparatory steps for the organization of, or (iii) build, design, finance, acquire, lease, operate, manage, invest in, work or consult for or otherwise affiliate myself with, any business in competition with or otherwise similar to the Company’s business. The foregoing covenant shall cover my activities in every part of the Territory in which I may conduct business during the term of such covenant as set forth above. "Territory" shall mean (i) all counties in the State of Oregon, (ii) all other states of the United States of America and (iii) all other countries of the world; provided that, with respect to clauses (ii) and (iii), the Company derives at least five percent (5%) of its gross revenues from such geographic area prior to the date of the termination of my relationship with the Company.
(b) I acknowledge that I will derive significant value from the Company’s agreement in Section 2(a)(i) to provide me with that Confidential Information of the Company to enable me to optimize the performance of my duties to the Company. I further acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither to disclose nor to use the Company’s Confidential Information other than for the Company’s exclusive benefit and my obligation not to compete contained in subsection (a) above, is necessary to protect the Company’s Confidential Information and, consequently, to preserve the value and goodwill of the Company. I further acknowledge the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of the Company’s desire to protect its Confidential Information, and that I will not be precluded from gainful employment if I am obligated not to compete with the Company during the period and within the Territory as described above.
(c) The covenants contained in subsection (a) above shall be construed as a series of separate covenants, one for each city, county and state of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in subsection (a) above. If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a) above are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, then permitted by such law.
What is the name of your state?
