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non-compete agreement

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A

Amazed

Guest
I've worked for a computer consulting co. for the last 16 years. Last week i was let go - for no apparent reason - it just isn't working out, is what i got. My clients that I've worked for are stunned, as I am...and are requesting to work with me, not my former employer. There is a specific job function that i performed for these clients that I'd like to continue doing for them - I did not solicit them, they called me. However I did sign, 16 years ago, a non-compete agreement, that reads like I cannot do this. Is this enforceable? This is what I've done for many many years, and it's what I'm trained to do...can they really stop me from doing it? This skill, reportwriting in general, is only a small piece of what my former employee does - they do much more. And, right now, there really is very little skill of this kind at my former employee - i did most of this work. There are some employees who might know a little, but probably can't meet these customers needs. The customer is also saying they no longer want to pay my former employer, they want to work w/ me. Can you help?
 


I AM ALWAYS LIABLE

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Amazed:
I've worked for a computer consulting co. for the last 16 years. Last week i was let go - for no apparent reason - it just isn't working out, is what i got. My clients that I've worked for are stunned, as I am...and are requesting to work with me, not my former employer. There is a specific job function that i performed for these clients that I'd like to continue doing for them - I did not solicit them, they called me. However I did sign, 16 years ago, a non-compete agreement, that reads like I cannot do this. Is this enforceable? This is what I've done for many many years, and it's what I'm trained to do...can they really stop me from doing it? This skill, reportwriting in general, is only a small piece of what my former employee does - they do much more. And, right now, there really is very little skill of this kind at my former employee - i did most of this work. There are some employees who might know a little, but probably can't meet these customers needs. The customer is also saying they no longer want to pay my former employer, they want to work w/ me. Can you help? <HR></BLOCKQUOTE>


My response:

You haven't told us what State you were employed and, you haven't written the exact verbiage of the "Noncompete" portions of your contract. Therefore, the following is from California law, and further, is only a guess as to whether it is applicable to your particular agreement.

Despite that, your former employer has no control over its customers and, if they wish to contact you directly, that is their business with whom they wish to conduct business.

You may be constrained by a certain geographical area; e.g., 5 mile radius, but I don't know this to be the fact. If so, such radius cannot be so large as to be unconscionably restrictive. Nonetheless, you should ask, in writing, for a copy of the contract you signed.

Here are some salient quotes from a California case:

Metro Traffic Control, Inc. v. Shadow Traffic Network (1994) 22 Cal.App.4th 853, 27 Cal.Rptr.2d 573

Business and Professions Code section 16600 provides: "... every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." California courts have consistently declared this provision an expression of public policy to ensure that every citizen shall retain the right to pursue any lawful employment and enterprise of their choice. Section 16600 has specifically been held to invalidate employment contracts which prohibit an employee from working for a competitor when the employment has terminated, unless necessary to protect the employer's trade secrets. (Muggill v. Reuben H. Donnelley Corp. (1965) 62 Cal.2d 239, 242 [42 Cal.Rptr. 107, 398 P.2d 147, 18 A.L.R.3d 1241].)

One commentator closes this analytical circle neatly: "Any attempt to restrict competition by the former employee by contract appears likely to be doomed under section 16600 of the Business and Professions Code, unless the restriction is carefully limited and the agreement protects merely a proprietary or property right of the employer recognized as entitled to protection under the general principles of unfair competition. In other words, it seems that the employer will be able to restrain by contract only that conduct of the former employee that would have been subject to judicial restraint under the law of unfair competition, absent the contract." (Hays, Unfair Competition—Another Decade (1963) 51 Cal. L.Rev. 51, 69, fn. omitted.)

Good luck to you.

IAAL


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A

Amazed

Guest
Thanks for your advice, things might be looking up...Here are some more details that may help...I live in PA, and a portion of the contract reads like this.
"For a period of 12 months after termination of employmenet between employer and employee for any reason, with or without cause, ....Employee will not open a business or be employed by or act on behalf, of any competitor of employer which renders the same or similar services as employer, and within the then existing sales, marketing and service territory serviced by employer..
The parties have attempted to limit employees right to compete only to the extent necessary to protect employer from unfair competition. The parties recognize, however, that resaonable people may differ in making such a determination. Consequently, the parties hereby agree that if the scope or enforcability of the restrictive convenant is any way disputed at any time, a court or other trier of fact may modify and enforce the convenant to the extent that is is believed to be reasonable under the circumstances existing at the time. Employee further acknowledged that in the event of his/her employment with employer terminates for any reason, he/she will be able to earn a livelihood without violating the foregoing restrictions and that his/her ability to earn a livelihood without vilating such restrictions is a material condition to his/her employment with employer."
 

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