poverty-level pay and non-compete enforceability

[Fr33Ag3nt]

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

My employer is ruining my finances, and still threatens me with a non-compete. I've told him I must apply for public assistance since he has not paid me a living wage for the past year, yet claims his non-compete agreement he had me sign is still enforceable; is this true? I was under the impression that a non-compete could not be enforced if it interfered with a person's ability to make a living, yet in Indiana, some ridiculously long non-competes (5 years) are still enforced.

I would like to leave the job, but don't want to inherit a court date, even though I'm just trying to get out of the poverty my employer has trapped me in. The worker's agreement states I must go through an injunction, and that by agreeing I've waived my right to a trial by jury.

So basically: am I screwed to the point that I'd have to move out of state to find work, or will the law more likely be on my side in this matter?

 

[LdiJ]

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

My employer is ruining my finances, and still threatens me with a non-compete. I've told him I must apply for public assistance since he has not paid me a living wage for the past year, yet claims his non-compete agreement he had me sign is still enforceable; is this true? I was under the impression that a non-compete could not be enforced if it interfered with a person's ability to make a living, yet in Indiana, some ridiculously long non-competes (5 years) are still enforced.

I would like to leave the job, but don't want to inherit a court date, even though I'm just trying to get out of the poverty my employer has trapped me in. The worker's agreement states I must go through an injunction, and that by agreeing I've waived my right to a trial by jury.

So basically: am I screwed to the point that I'd have to move out of state to find work, or will the law more likely be on my side in this matter?

Who told you that Indiana enforces 5 year non-competes? Are you making less than minimum wage per pay period? What kind of work do you do? Can you provide a little more information about the situation and the non-compete?

I suspect that your non-compete is not enforceable but more information is needed.

 

[justalayman]

the most recent decisions regarding non-competes is that the agreement must be reasonable both in scope of what it covers and the geographical area covered as well as the time.



Depending on the specific terms of the agreement, it may or may not be enforceable. Given the current status of non-competes in Indiana, it may be in your best interest to take a copy of the agreement to an attorney who can review it in it's entirety and provide an opinion. I suspect the 5 year period would be seen as unreasonable but the problem is; older case law allowed the courts to alter the specific problematic issue where as a ruling this year simply struck down the entire agreement. Which the court in your area may follow is something you would have to speak with a local attorney about.

 

[Fr33Ag3nt]

Who told you that Indiana enforces 5 year non-competes? Are you making less than minimum wage per pay period? What kind of work do you do? Can you provide a little more information about the situation and the non-compete?

I suspect that your non-compete is not enforceable but more information is needed.

The company I work for does IT consulting around the state, as well as remotely around the world. My pay-per-hour is $30, however I'm only paid when contracts come in, and this entire year, that included only one company (with a small 3 month contract). My employer argues that I am full time because I signed an agreement that stated I would be available M-F between the hours of 8am and 5pm, but again, I'm not compensated during those hours unless I'm assigned work (which to the end of the year will total no more than $12,000 gross pay).

The 5-year non-compete enforcement is in reference to a recent case of "Mayne v O’Bannon Publishing Co., 36 IER Cases 279 (Ind. Ct. App. 2013)"
(I tried replying with a link earlier, but it didn't post).

 

[Proserpina]

The company I work for does IT consulting around the state, as well as remotely around the world. My pay-per-hour is $30, however I'm only paid when contracts come in, and this entire year, that included only one company (with a small 3 month contract). My employer argues that I am full time because I signed an agreement that stated I would be available M-F between the hours of 8am and 5pm, but again, I'm not compensated during those hours unless I'm assigned work (which to the end of the year will total no more than $12,000 gross pay).

The 5-year non-compete enforcement is in reference to a recent case of "Mayne v O’Bannon Publishing Co., 36 IER Cases 279 (Ind. Ct. App. 2013)"
(I tried replying with a link earlier, but it didn't post).

That unpublished opinion (meaning "those decisions of courts that are not available for citation as precedent because the judges making the opinion deem the case as having less precedential value") is not even close to your situation.

It's a bit clearer here:

http://www.noncompetereport.com/2013/08/19/indiana-court-upholds-five-year-restriction-in-non-compete-agreement/

Read the bottom segments in particular.

 

[Fr33Ag3nt]

That unpublished opinion (meaning "those decisions of courts that are not available for citation as precedent because the judges making the opinion deem the case as having less precedential value") is not even close to your situation.

Are you suggesting that my non-compete is therefore unenforceable? My original goal was not to debate the validity of an external case, but to understand how enforceable my non-compete agreement is. I would greatly appreciate any comments you or others might have on that.

 

[justalayman]

There was an Indiana court decision earlier this year that really muddied the waters as far as whst a court can and might do. Due to that decision it is not clear what a court might do in your situation. That is why a discussion with a local lawyer would be your best source of the probabilities of what might happen if you challenged your non-compete.

 

[Proserpina]

Are you suggesting that my non-compete is therefore unenforceable?

No. I am telling you that the case you used isn't even vaguely similar to your situation.

My original goal was not to debate the validity of an external case, but to understand how enforceable my non-compete agreement is. I would greatly appreciate any comments you or others might have on that.

We can't see the agreement. We cannot tell you whether it is or is not enforceable. Get thee to an attorney.

 

[PaulMass]

You should have a local attorney look at the agreement to see if it is enforceable. If it is, you need to decide if you want to abide by the contract or not.

There is nothing inherently evil about breaching a contract. It is purely a business decision. You have to measure the risks against the benefits.

A few things to consider are whether the employer will spend the tens of thousands of dollars necessary to enforce the contract, and if they will even learn that you have breached.

If you get another job but stay away from the employer's clients, there really isn't any way former employer will know you have breached. You are under no obligation, short of a court order, to inform anyone who you are working for. That includes former employer.

Keep your mouth shut and stay under the radar.

 

[Dave1952]

Forgive me if this seems off-topic but have you looked into unemployment benefits? Call the local office and discuss your situation. It's not clear whether you have worked enough quarters to qualify but it's only a phone call.

 

[single317dad]

I've been under three different non-competes as an IT professional in Indiana, and mine were all completely ridiculous. They're handed to you with terms of "sign this today or go home unemployed tonight"; the geographical limits of one were so broad I'd have had to move to Canada or Nevada to work and couldn't have done any online sales at all; they all ranged from 2 to 5 years of being barred from doing the same work I've done in the same place for 25 years; and of course by their nature they were all completely one-sided: the company got everything and all the worker got was "you get to keep working here."

Personally, I wiped my (feet) with all of them. However, that's not what I recommend you do. What you should do is take your agreement to an attorney and discuss its enforceability and its effect on your future employment.

As far as your current job not being a fair arrangement, your option is to quit and work somewhere else. The IT business is brutal here, which is one of the main reasons why I left it.