Answers Posted By Dana LeJune
While Ms. Weinberg is correct that not paying an employee does not invalidate the NC agreement, if you worked there for some period of time BEFORE they had you sign the NC, the employer MUST have provided some ADDITIONAL consideration to you (in addition to your normal pay) for the NC to be enforceable by the employer.
I would have to see the agreement and analyze it to give you complete and proper advice.
answer to Does the non-compete agreement still apply posted Aug 9, 2009 7:13 PM [EST]
I would have to see the agreement and analyze it to give you complete and proper advice.
answer to Does the non-compete agreement still apply posted Aug 9, 2009 7:13 PM [EST]
You may have signed the non compete agreement when you first went to work for the company, and not remember it. Or, the company has made a mistake. But you don't know which.
I would send a letter to the person who signed the C&D letter asking to be provided the non compete agreement to which it refers.
I would not admit or deny that I am "competing" in this letter; just ask for a copy of the document.
Dana Andrew LeJune
Board-Certified, Civil Trial Lawyer
3006 Brazos
Houston, Texas 77006
713.942-9898
"Zealous Representation"
WWW.TRIALLAWYERS.NET
"Unless you become more watchful in your States and check this spirit of monopoly and thirst for exclusive privileges you will in the end find that the most important powers of Government have been given or bartered away, and the control of your dearest interests have been passed into the hands of these corporations." -- President Andrew Jackson
answer to should i reply to a cease and desist letter posted Aug 9, 2009 7:03 PM [EST]
I would send a letter to the person who signed the C&D letter asking to be provided the non compete agreement to which it refers.
I would not admit or deny that I am "competing" in this letter; just ask for a copy of the document.
Dana Andrew LeJune
Board-Certified, Civil Trial Lawyer
3006 Brazos
Houston, Texas 77006
713.942-9898
"Zealous Representation"
WWW.TRIALLAWYERS.NET
"Unless you become more watchful in your States and check this spirit of monopoly and thirst for exclusive privileges you will in the end find that the most important powers of Government have been given or bartered away, and the control of your dearest interests have been passed into the hands of these corporations." -- President Andrew Jackson
answer to should i reply to a cease and desist letter posted Aug 9, 2009 7:03 PM [EST]
No, and Probably
Carl:
Once you signed the agreement, and accepted the money, you are bound to comply; paying the money back won't work, as the company will hold you to it.
Yes, the scope of the agreement you describe sounds far too broad to be enforced. However, it probably has a clause that allows the court to reform (rewrite) the agreement so that it becomes enforceable. A court will probably circumscribe the boundary or term or both to be a "reasonable restraint on trade." If your new job is further than about 75 - 100 miles of where you worked for the previous employer, this may work for you, but you won't know until you work there, get sued, and get before the judge.
If you want me to look at the agreement and give you a better idea of how this may shake down, I bill at $300/hour, minimun 2 hours to review and advise.
Dana Andrew LeJune
Board-Certified, Civil Trial Lawyer
3006 Brazos
Houston, Texas 77006
713.942-9898
"Zealous Representation"
WWW.TRIALLAWYERS.NET
answer to Non-compete as part of termination/severance agreement posted Oct 31, 2008 7:37 PM [EST]
Carl:
Once you signed the agreement, and accepted the money, you are bound to comply; paying the money back won't work, as the company will hold you to it.
Yes, the scope of the agreement you describe sounds far too broad to be enforced. However, it probably has a clause that allows the court to reform (rewrite) the agreement so that it becomes enforceable. A court will probably circumscribe the boundary or term or both to be a "reasonable restraint on trade." If your new job is further than about 75 - 100 miles of where you worked for the previous employer, this may work for you, but you won't know until you work there, get sued, and get before the judge.
If you want me to look at the agreement and give you a better idea of how this may shake down, I bill at $300/hour, minimun 2 hours to review and advise.
Dana Andrew LeJune
Board-Certified, Civil Trial Lawyer
3006 Brazos
Houston, Texas 77006
713.942-9898
"Zealous Representation"
WWW.TRIALLAWYERS.NET
answer to Non-compete as part of termination/severance agreement posted Oct 31, 2008 7:37 PM [EST]
During the NC period
Mr. Trabilsy:
Two years is probably too long to be enforceable anyway; courts don't like non compete agreements ("NC"), and look for ways to invalidate them. But no, the employer doesn't waive the right to sue under the agreement if it doesn't sue within 30 days.
If you would like me to review the NC and give you more specific advice, you can email me the NC for evaluation. I bill at $300/hour and require a 2 hour retainer in advance.
Good luck!
Dana LeJune
713 942-9898
dlejune@triallawyers.net
answer to Time period to challenge new employment posted Feb 12, 2008 1:37 PM [EST]
Mr. Trabilsy:
Two years is probably too long to be enforceable anyway; courts don't like non compete agreements ("NC"), and look for ways to invalidate them. But no, the employer doesn't waive the right to sue under the agreement if it doesn't sue within 30 days.
If you would like me to review the NC and give you more specific advice, you can email me the NC for evaluation. I bill at $300/hour and require a 2 hour retainer in advance.
Good luck!
Dana LeJune
713 942-9898
dlejune@triallawyers.net
answer to Time period to challenge new employment posted Feb 12, 2008 1:37 PM [EST]
Yes You Can! (hear Obama)
Anyone with $100 can sue anyone else, so yes, you can be sued. Can the employer win? Maybe.
Judges HATE non-compete agreements, and they must be written very carefully, and the geographic area where the competition is prohibited "reasonable," as well as the term (how long), and whether there was any consideration for the agreement.
The fact that another company now owns the former employer is irrelevant.
One thing you might do is have a lawyer send the employer a breach letter demanding the severance and if they don't respond, and decide to sue on the NC, you have a "prior breach" argument. Or you may wish to let sleeping dogs lie, and raise that if/when they sue you.
I'd be happy to review the NC to tell you whether it is probably enforceable. Will probably take an hour or so.
answer to Is non-compete still enforceable? posted Feb 6, 2008 4:53 PM [EST]
Anyone with $100 can sue anyone else, so yes, you can be sued. Can the employer win? Maybe.
Judges HATE non-compete agreements, and they must be written very carefully, and the geographic area where the competition is prohibited "reasonable," as well as the term (how long), and whether there was any consideration for the agreement.
The fact that another company now owns the former employer is irrelevant.
One thing you might do is have a lawyer send the employer a breach letter demanding the severance and if they don't respond, and decide to sue on the NC, you have a "prior breach" argument. Or you may wish to let sleeping dogs lie, and raise that if/when they sue you.
I'd be happy to review the NC to tell you whether it is probably enforceable. Will probably take an hour or so.
answer to Is non-compete still enforceable? posted Feb 6, 2008 4:53 PM [EST]
Demotion & pay cut
Trish:
If you do not have a written contract of employment, and you quit, I do not think you will be eligible for unemployment compensation. If you don't have a unioon, and you want to keep your job, you do "have to accept the cut in pay."
answer to pay cut posted Aug 13, 2004 5:55 PM [EST]
Trish:
If you do not have a written contract of employment, and you quit, I do not think you will be eligible for unemployment compensation. If you don't have a unioon, and you want to keep your job, you do "have to accept the cut in pay."
answer to pay cut posted Aug 13, 2004 5:55 PM [EST]
Payback of signing bonus
Mr. Artz:
Was the agreement to pay back the signing bonus in writing? Your query is ambiguous about that. If it is, the general rule of contract law is that a written agreement cannot be modified verbally; in fact, it is doubtful if your coworkers' testimony will be allowed as evidence, as "parole evidence" (words) cannot be used to modify or explain a written agreement.
Nevertheless, if there's enought $ involved, it may serve you well to retain counsel to respond to the company's demand in writing; may just make them go away.
You may email me directly for any other questions, or call.
713 942-9898
dlejune@triallawyers.net
Dana LeJune
answer to Verbal agreement to posted Aug 13, 2004 5:47 PM [EST]
Mr. Artz:
Was the agreement to pay back the signing bonus in writing? Your query is ambiguous about that. If it is, the general rule of contract law is that a written agreement cannot be modified verbally; in fact, it is doubtful if your coworkers' testimony will be allowed as evidence, as "parole evidence" (words) cannot be used to modify or explain a written agreement.
Nevertheless, if there's enought $ involved, it may serve you well to retain counsel to respond to the company's demand in writing; may just make them go away.
You may email me directly for any other questions, or call.
713 942-9898
dlejune@triallawyers.net
Dana LeJune
answer to Verbal agreement to posted Aug 13, 2004 5:47 PM [EST]
Followup with Dana
Kathy:
I have the non compete you faxed, but you never called back, and never sent any retainer fee.
This is a complex issue, and will require at least an hour consult, and your ex-boss is correct, a lot more to defend you. However, if the agreement is not enforceable, your lawyer may be able to talk some sense into the guy BEFORE he sues you and your new employer...
Still waiting for the consult fee in Houston, I remain,
VTY
Dana LeJune
answer to non-compete posted Aug 6, 2004 6:48 PM [EST]
Kathy:
I have the non compete you faxed, but you never called back, and never sent any retainer fee.
This is a complex issue, and will require at least an hour consult, and your ex-boss is correct, a lot more to defend you. However, if the agreement is not enforceable, your lawyer may be able to talk some sense into the guy BEFORE he sues you and your new employer...
Still waiting for the consult fee in Houston, I remain,
VTY
Dana LeJune
answer to non-compete posted Aug 6, 2004 6:48 PM [EST]
You need an immigration lawyer!
I have absolutely NO IDEA what you are asking, and no clue about any answer.
Anyone else?!
answer to LCA prevailing wages-actual pay posted Jul 29, 2004 01:56 AM [EST]
I have absolutely NO IDEA what you are asking, and no clue about any answer.
Anyone else?!
answer to LCA prevailing wages-actual pay posted Jul 29, 2004 01:56 AM [EST]
Commissions unnpaid
The TEC has nothing to do with your problem. Rather, the Texas Dept of Labor, or the Fair Labor Standards Division of the U.S. Dept Labor presides over WAGE claims. Because your problem is commissions and not wages, underpaid or unpaid, neither of these government departments has jurisdiction.
You will simply have to add up the total amount owed to you and your co workers over the last 4 years (four years is the farthest back you can go, as the statute of limitations is 4 yrs for a breach of agreement such as this). Remember, YOU WILL HAVE TO PROVE that there WAS an agreement to pay commissions -- and the percentage or way of calculating the amount -- for the parts in question.
The problem is that your employer will probably then target you and your coworkers for termination if you set out on this course. Unfortunately, there are no protections for your job security as there is with such things as reporting unpaid overtime to the U.S. Dept Labor; the cause of action afforded the employee for termination because of reporting unpaid overtime is called "retaliatory discharge." We could be very creative and sue for "intentional infliction of emotional distress" should your employer terminate you all for seeking the commissions, but that is the very weakest cause of action in the entire jurisprudence of the Great State of Texas. So, you and your coworkers will likely have to choose between getting paid the commissions, and keeping your jobs.
Again, if you all choose to seek the payment of the commisisons, GET COPIES OF A BUNCH OF DOCUMENTS OFF THE PREMISES (or email them to yourself) WITH WHICH YOU CAN PROVE THE EXISTENCE OF THE AGREEMENT TO PAY THOSE COMMISSIONS, AND THE WAY THEY ARE CALCULATED! Once you are terminated (and you will likely be), you will no longer have the ability to get at the documents. Your lawyer will be able to request production of documents proving the agreement, but (not surprisingly) employers and other defendants sometimes "lose" them, or claim that they can't locate them, or worse, simply get rid of them, and deny their existence.
If you want the very BEST CHANCE of success should you decide to demand the commissions be paid you, GET ALL THE OTHERS TOGETHER IN THE SAME BOAT AND HIRE A LAWYER FOR THE WHOLE. This will divide the costs of litigation so that it is affordable, and should the employer retaliate against all of you, it will look the worst it can look to the jury.
answer to In-accurate Commission Pay posted Jul 25, 2004 3:00 PM [EST]
The TEC has nothing to do with your problem. Rather, the Texas Dept of Labor, or the Fair Labor Standards Division of the U.S. Dept Labor presides over WAGE claims. Because your problem is commissions and not wages, underpaid or unpaid, neither of these government departments has jurisdiction.
You will simply have to add up the total amount owed to you and your co workers over the last 4 years (four years is the farthest back you can go, as the statute of limitations is 4 yrs for a breach of agreement such as this). Remember, YOU WILL HAVE TO PROVE that there WAS an agreement to pay commissions -- and the percentage or way of calculating the amount -- for the parts in question.
The problem is that your employer will probably then target you and your coworkers for termination if you set out on this course. Unfortunately, there are no protections for your job security as there is with such things as reporting unpaid overtime to the U.S. Dept Labor; the cause of action afforded the employee for termination because of reporting unpaid overtime is called "retaliatory discharge." We could be very creative and sue for "intentional infliction of emotional distress" should your employer terminate you all for seeking the commissions, but that is the very weakest cause of action in the entire jurisprudence of the Great State of Texas. So, you and your coworkers will likely have to choose between getting paid the commissions, and keeping your jobs.
Again, if you all choose to seek the payment of the commisisons, GET COPIES OF A BUNCH OF DOCUMENTS OFF THE PREMISES (or email them to yourself) WITH WHICH YOU CAN PROVE THE EXISTENCE OF THE AGREEMENT TO PAY THOSE COMMISSIONS, AND THE WAY THEY ARE CALCULATED! Once you are terminated (and you will likely be), you will no longer have the ability to get at the documents. Your lawyer will be able to request production of documents proving the agreement, but (not surprisingly) employers and other defendants sometimes "lose" them, or claim that they can't locate them, or worse, simply get rid of them, and deny their existence.
If you want the very BEST CHANCE of success should you decide to demand the commissions be paid you, GET ALL THE OTHERS TOGETHER IN THE SAME BOAT AND HIRE A LAWYER FOR THE WHOLE. This will divide the costs of litigation so that it is affordable, and should the employer retaliate against all of you, it will look the worst it can look to the jury.
answer to In-accurate Commission Pay posted Jul 25, 2004 3:00 PM [EST]
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