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Is the Non Compete Enforceable?

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jsaint5

Junior Member
What is the name of your state (only U.S. law)? FL

My wife is looking to start her own Ultrasound business. She is currently employed at Comp A. Comp A has cut her pay and reimbursement anywhere from 20-33% across the board. She is now paid less than the average wage for the area, hence the new business. She signed a non compete when she was hired 3.5 years ago. She never received a copy of her non compete and her current employer would easily fire her for asking. He is rather mean. She has already spoken to several of her accounts and they have all stated they will fire her current employer if she leaves. She is the best tech they have and is sent to all the trouble accounts to make them happy. Several of the accounts they have are from her cultivation of relationships. My question is, if they are fired, is she still considered in competition with her previous employer if they are no longer employed with the clients and is that a breach?
 


Silverplum

Senior Member
What is the name of your state (only U.S. law)? FL

My wife is looking to start her own Ultrasound business. She is currently employed at Comp A. Comp A has cut her pay and reimbursement anywhere from 20-33% across the board. She is now paid less than the average wage for the area, hence the new business. She signed a non compete when she was hired 3.5 years ago. She never received a copy of her non compete and her current employer would easily fire her for asking. He is rather mean. She has already spoken to several of her accounts and they have all stated they will fire her current employer if she leaves. She is the best tech they have and is sent to all the trouble accounts to make them happy. Several of the accounts they have are from her cultivation of relationships. My question is, if they are fired, is she still considered in competition with her previous employer if they are no longer employed with the clients and is that a breach?
Your wife is putting herself into a pretty scary legal position.
 

jsaint5

Junior Member
In what way? Casually discussing over lunch her cut in pay and desire to go out on her own? As long as she doesnt share company secrets, whats the harm? She has been working for these people for years. They have used other techs and they have all been sent away.
 

quincy

Senior Member
What is the name of your state (only U.S. law)? FL

My wife is looking to start her own Ultrasound business. She is currently employed at Comp A. Comp A has cut her pay and reimbursement anywhere from 20-33% across the board. She is now paid less than the average wage for the area, hence the new business. She signed a non compete when she was hired 3.5 years ago. She never received a copy of her non compete and her current employer would easily fire her for asking. He is rather mean. She has already spoken to several of her accounts and they have all stated they will fire her current employer if she leaves. She is the best tech they have and is sent to all the trouble accounts to make them happy. Several of the accounts they have are from her cultivation of relationships. My question is, if they are fired, is she still considered in competition with her previous employer if they are no longer employed with the clients and is that a breach?
Your wife needs a copy of the non-compete agreement she signed if she hopes to know what she can and can't do.

It will be the specific terms of the agreement that determines when, where and how she is able to open her own business, or whether any or all of the terms of the agreement might be unenforceable as written.

It is possible, for example, that your wife would not violate the terms of the agreement if she opens her business outside a 50-mile radius of her current place of employment or if she waits a year to open.

Facts matter. All contracts need to be reviewed in their entirety.
 

jsaint5

Junior Member
I think the best option for us now is to get her a different job for the time being....and make sure she doesn't sign another non compete. May add a clause or two for ourselves this time if pressed. But once we are out of that situation we will request a copy of the document. If he refuses to provide it we may have to hire an attorney. I know he is required to provide a copy of all documents signed.
 

quincy

Senior Member
I think the best option for us now is to get her a different job for the time being....and make sure she doesn't sign another non compete. May add a clause or two for ourselves this time if pressed. But once we are out of that situation we will request a copy of the document. If he refuses to provide it we may have to hire an attorney. I know he is required to provide a copy of all documents signed.
Yes, your wife should have been provided a copy of the non-compete agreement she signed.

Prior to the signing of any non-compete, it can be important for an employee/prospective employee to have the agreement reviewed by an attorney, who can explain exactly what is being agreed to with his/her signature on the document. Some employees/prospective employees might find the terms of the agreement too restrictive and might choose to look for a job elsewhere.
 
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jsaint5

Junior Member
My basic question is, should they be fired, could she pick them up. Obviously if they are fired without any input from my wife, would she still be in competition? Common sense would tell me no, but im biased. Also, i signed nothing with her employer. So if i started the company and hired my wife as an employee, would that violate the non compete? She works for me, not the client. Its hazy, i know. But its just my thoughts.
 

eerelations

Senior Member
There is no way of knowing what would violate the non-compete and what wouldn't without seeing it in its entirety. Every non-compete is different. I personally know this as I have seen, written and enforced many non-competes and they really are all different.
 

latigo

Senior Member
There is no way of knowing what would violate the non-compete and what wouldn't without seeing it in its entirety. Every non-compete is different. I personally know this as have seen, written and enforced many non-competes (?) and they really are all different.
You write that you have "personally enforced" many covenants not to compete?

Well if that is really true, then you either had to do it by using strong arm methods physically preventing the promisee from violating the covenant OR you did so acing in the capacity of a duly elected or appointed judge presiding in a court of law.

So which is it? All as a judge? All with muscle? Or some of each?
 

eerelations

Senior Member
You write that you have "personally enforced" many covenants not to compete?

Well if that is really true, then you either had to do it by using strong arm methods physically preventing the promisee from violating the covenant OR you did so acing in the capacity of a duly elected or appointed judge presiding in a court of law.

So which is it? All as a judge? All with muscle? Or some of each?
I meant that on a number of occasions throughout my career I have had to communicate with employees, former employees, hiring organizations, and lawyers about employees' and former employees' non-compete agreements and remind/inform them of the restrictions contained in said agreements. On the few occasions where the employees/former employees didn't "get it" I then worked closely with corporate counsel to help them "get it" via the courts.

On a side note, while I understand how you might want some clarification of my statement, I find it more than a little odd that you're so upset by it. I have read it over a few times since you brought it to my attention, and really, it's pretty benign. Is there something else going on with you that you haven't expressed?
 

latigo

Senior Member
I meant that on a number of occasions throughout my career I have had to communicate with employees, former employees, hiring organizations, and lawyers about employees' and former employees' non-compete agreements and remind/inform them of the restrictions contained in said agreements. On the few occasions where the employees/former employees didn't "get it" I then worked closely with corporate counsel to help them "get it" via the courts.

On a side note, while I understand how you might want some clarification of my statement, I find it more than a little odd that you're so upset by it. I have read it over a few times since you brought it to my attention, and really, it's pretty benign. Is there something else going on with you that you haven't expressed?
So upon further reflection you didn't actually prepare any such legal documents or enforce them as you initially stated, you just provided legal advice concerning them.
 

eerelations

Senior Member
So upon further reflection you didn't actually prepare any such legal documents or enforce them as you initially stated, you just provided legal advice concerning them.
Ummm no, you got it wrong again. To clarify:

1. I have personally seen many non-compete agreements. (I said this originally, don't know how you could have got it wrong, but OK.)
2. I have personally written many non-compete agreements. (I also said this originally, again, don't know how you could have got it wrong, but OK.)
3. I have personally been involved in the enforcement of many non-compete agreements. (I didn't quite say it this way the first time, but then I did clarify my original statement for you, as you requested.)

Nothing has changed from my first statement. If you have a problem with my first statement (which was quite benign, as noted previously), then you have more problems than I can help you with. Maybe you need to take some reading comprehension courses, or perhaps get a new therapist. :rolleyes:
 

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