Non-compete After Employment Agreement Expires

Mel,

I signed an Employment Agreement in 1/1/01. The "Employment Period" was defined as two years and expired in 1/1/03.

I still work for the company, but I have not signed another Employment Agreement b/c the new terms are unacceptable.

The "Non-Competition" section states "During the Employment Period, and for a period of one year following Executive's termination of employment with the Company for any reason, Executive sall not directly or indirectly (a) own, manage..."

Do you think this Non-Compete section is enforceable? If not, then why?

Thanks for your help.

2 answers  |  asked Mar 28, 2004 08:18 AM [EST]  |  applies to Massachusetts

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Answers (2)

Judith Miller
Non-compete

It is impossible to determine whether the non-compete section of the agreement (was the non-compete section from the old agreement or the new agreement) is enforceable without reviewing the agreement(s). For example, if the language you quote is from the old agreement and it also has a provision saying that the section survives termination, it may continue to be enforceable. In order to determine your rights and your best course of action, you should have both agreements reviewed by a Massachusetts attorney who specializes in reviewing such agreements.

posted by Judith Miller  |  Mar 29, 2004 10:17 AM [EST]
Evan Fray-Witzer
Poor draftsmanship, but....

Ah, yet another non-comp nominee for the Bad Drafting Oscars. All other things being equal, however (in other words, assuming that this particular non-comp was enforceable to begin with), I suspect that the non-comp will indeed remain enforceable for the one year post-termination period. I could see mounting the argument that, by presenting you with a new agreement to sign, the company impliedly admitted that the old agreement was no longer oprerative, but it's something of a thin argument. Still, non-comps are still oddly controversial and some judges just outright hate them, so you never really know. Good luck.

Evan

posted by Evan Fray-Witzer  |  Mar 29, 2004 07:01 AM [EST]

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