Employer's Non-compete is unenforceable

[libellous]

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

A potential employer's non-compete clause is DEFINITELY unenforceable in NYS. My question is, the employer is adamant about not changing the contract.

This is an opinion question:

If you were offered a VERY good job, with a unenforceable onerous non-compete and the employer was unwilling to change the clause, would you take it? (and effectively risk having to prove the unconscionable clause)

Also, there is an arbitration clause, which I am fine with, but I would be weary that an arbitrator might not be so traditional in interpreting state law.

 

[Zigner]

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

A potential employer's non-compete clause is DEFINITELY unenforceable in NYS. My question is, the employer is adamant about not changing the contract.

This is an opinion question:

If you were offered a VERY good job, with a unenforceable onerous non-compete and the employer was unwilling to change the clause, would you take it? (and effectively risk having to prove the unconscionable clause)

Also, there is an arbitration clause, which I am fine with, but I would be weary that an arbitrator might not be so traditional in interpreting state law.

Prove what? You have already stated (as part of your hypothetical proposition) that the non-compete is DEFINITELY unenforceable in NYS.

 

[libellous]

From what I understand from a practicing arbitrator, if any party leaves happy from arbitration, "they are not doing their job." (This is to be taken as hes saying they usually split decisions down the middle).

So, my question is that, even though the clauses are non-enforcible since we would have to go to arbitration, what insight does anyone else have from experiance?

 

[Beth3]

Actually, the question is if you take the job and the employer decides to take legal action, how much money are you willing to spend on legal representation, even if you prevail in the end?

 

[libellous]

Actually, the question is if you take the job and the employer decides to take legal action, how much money are you willing to spend on legal representation, even if you prevail in the end?

Exactly what I was worried about. There is an arbitration clause, and the way they worded it, no matter who brings suit, the costs are split, even though they are the deep pocket.

If it was outside of arbitration, I have no worries of legal cost, I have free representation, but my worry is that this is arbitration.

 

[ecmst12]

It sounds to me like you need personalized legal advice from someone who has read the proposed contract and is familiar with the legal climate in your area. Which, generally speaking, you can't get from a website and you usually need to pay for. However, if the job is good and the risk is high, it should be worth the cost.

 

[Zigner]

From what I understand from a practicing arbitrator, if any party leaves happy from arbitration, "they are not doing their job." (This is to be taken as hes saying they usually split decisions down the middle).

That's BS...

 

[You Are Guilty]

Exactly what I was worried about. There is an arbitration clause, and the way they worded it, no matter who brings suit, the costs are split, even though they are the deep pocket.

If it was outside of arbitration, I have no worries of legal cost, I have free representation, but my worry is that this is arbitration.

So you have a free lawyer available if you are sued in a court of law, but no lawyer to use in case you have to arbitrate? Is your lawyer allergic to arbitration?

And you may want to be extra sure that the contract is unenforceable in NY - if you are even a little bit wrong about that, it will change your risk calculus immensely.

Good luck.

 

[Beth3]

If it was outside of arbitration, I have no worries of legal cost, I have free representation, but my worry is that this is arbitration.

So you split the cost of arbitration rather than court costs. It's much cheaper - which is why some employers include binding arbitration clauses in agreements in lieu of either party being able to pursue civil claims through the court system. Legal fees are proportionately less as well.

 

[Betty]

N.Y. noncompetes are disfavored (per court cases) as a matter of public policy and are enforceable only to the extent that they satisfy the overriding requirement of reasonableness. Noncompetes will only be subject to specific enforcement to the extent that they are reasonable in time and area, necessary to protect the employer's legitimate interests, not harmful to the general public, and not unreasonably burdensome to the employee.

You might want to have the agreement reviewed by an attorney in your area to get his/her opinion on whether it would be unenforceable.

 

[libellous]

N.Y. noncompetes are disfavored (per court cases) as a matter of public policy and are enforceable only to the extent that they satisfy the overriding requirement of reasonableness. Noncompetes will only be subject to specific enforcement to the extent that they are reasonable in time and area, necessary to protect the employer's legitimate interests, not harmful to the general public, and not unreasonably burdensome to the employee.

You might want to have the agreement reviewed by an attorney in your area to get his/her opinion on whether it would be unenforceable.

It was my attorny's decision it is unenforceable, but he waivers on whether or not its still a good idea to sign it since they arent budging on modifying the verbage.

 

[Betty]

It was my attorny's decision it is unenforceable, but he waivers on whether or not its still a good idea to sign it since they arent budging on modifying the verbage.

If your attorney isn't sure whether you should sign the agreement or not, we sure don't know. That is a decision you will have to make.

 

[LeeHarveyBlotto]

I would never sign an agreement that I'm unwilling to live up to for multiple reasons.

 

[Mass_Shyster]

As single point of reference, I know of a company that recently spent about $70,000 on legal fees enforcing a non-compete. The former employee's fees were being paid by his new employer. I suspect they were also about $70,000.

The fees through the preliminary injunction stage were $12,000.