NON-COMPETE

my husband has been working for 3 years with a NY company, IN OCTOBER OF LAST YEAR THEY STARTED TO ASK HIM TO SIGN A CONFIDENTIALITY AGREEMENT-NON COMPETE. FINALLY A FEW MONTHS AGO THEY SAID THEY WOULD WITHHOLD HIS PAYCHECKS IF HE DIDN'T SIGN. HE ASKED WHAT HIS INCENTIVE TO SIGN WAS, AND THEY SAID "YOU GET TO KEEP YOUR JOB". THEY ALSO LAST YEAR AND THIS YEAR HAD HIM SIGN TWO CONTRACTS FOR A COMMISION BASED CLICKDOWN TO START ON 2 DIFFERENT DATES BUT AS OF RIGHT NOW HIS PAYCHECKS REMAIN SALARY BASED. BECAUSE THEY HAVE NOT STUCK TO OTHER CONTRACTS CAN THE NO COMPETE CONTRACT BE ENFORCEABLE. IT IS FOR A PERIOD OF 12 MONTHS. THE COMPANY IS BASED IN NY BUT HIS AREA OF SALES IS A LIMITED AREA IN NJ. THE NON COMPETE JUST MENTIONS "ANY COMPETITOR" IT DOES NOT DEFINE AN AREA. I ALSO KNOW FOR A FACT HIS CURRENT COMPANY (employer) HIRES OTHER EMPLOYEES THAT HAVE NON-COMPETES WITH OLD EMPLOYERS THAT THEY WORK AROUND. A NEW COMPANY (SAME TYPE BUSINESS)IS COMING INTO THE NJ AREA AND IS LOOKING FOR SOMEONE IN THE SAME AREA MY HUSBAND IS NOW COVERING BUT IS OFFERING CLOSE TO DOUBLE OR SIGNIFICANTLY MORE THAN HE IS MAKING NOW. PLEASE LET ME KNOW IF WE HAVE A CHANCE TO BREAK THIS NON-COMPETE BECAUSE THIS NEW COMPANY WILL NOT HIRE HIM UNLESS WE GET A LETTER FROM AN ATTORNEY STATING IT IS NOT ENFORCABLE. THANK-YOU

1 answer  |  asked Jul 23, 2003 10:01 PM [EST]  |  applies to New York

Unlock Non-Compete Agreements: Keys to Escape

Answers (1)

David M. Lira
Sign or Get Fired

With some types of documents, evidence that a person was coerced into signing that document would make that document not enforceable. In New York, in dealing with a non-compete in an employment agreement, I doubt that the coercive element alone would make the non-compete not enforceable.

Similarly, I doubt the fact that the employer has a tendency of not honoring its agreements will render a non-compete agreement unenforceable. The general rule of contract law is that the contract is enforceable if that contract, not any others, meets certain very minimal requirements. What goes on with other contracts is irrelevant.

But, even without knowing anyting about the job and the industry involved, I can say that there is a good chance that your husband's non-compete is not enforceable under New York law. New York law generally disfavors non-compete agreements in employment contracts.

But, if you are looking for an attorney to give you an opinion letter that your husband's non-compete is not enforceable, I doubt you will get it. At most, you'll get an opinion that it probably isn't enforceable, and I certainly would not give you such an opinion without thoroughly reviewing your husband's particular situation. If I did not do that, and the employer then sued you and won, I'd be involved in a malpractice claim, and deservingly so, because not all non-compete are unenforceable.

If you want a piece of paper saying that a particular non-compete is definitely not enforceable, you would have to go to court and start a declaratory judgment action. The aim of such an action would be to have a court say that the non-compete is not enforceable.

posted by David M. Lira  |  Jul 24, 2003 09:16 AM [EST]

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