Restriction on Postemployment Competition.

A clause in my contract states:
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For three years after termination the employee shall not, within a 200 mile radius of the Company's metropolitan marketing areas and/or present place of business, own, manage, operate, control, consult to or be employed by any business similiar to or competitive with that conducted by the company. If any part of this restriction is held to be invalid, the full restriction allowed by law shall be observed by the employee.
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I signed an employment contract with the above paragraph contained. The company's main office is in TN but also has an office in WV, which is where I work-out of and reside. I signed the contract while in orientation in the TN office.

Basically, the company is an exam preparation business. I give seminars on how to pass various exams in several states. I would like to leave this company and pursue this venture on my own. For all intents and purposes, I would like to do this in the state of VA, while still residing in WV. There are two factors that may or may not make a difference; at the time of my employment,(and when I signed the contract) we did NOT give seminars in VA, but we do now.
Secondly, I would NOT be using any of the company's client lists, or using any contacts that I had made while employed with said company. As far as proprietary information is concerned, the material we teach in the seminars is NOT theirs to begin with, it is gained from students who have taken the exam, and also we are sometimes required to take these exams for the express purpose of getting information, Which I am NOT comfortable doing. I also would be preparing fresh new materials for these seminars and would NOT be using any "company" materials other than what I have retained in my memory.

Any help would be appreciated.
Thanks!

1 answer  |  asked Apr 28, 2003 5:47 PM [EST]  |  applies to West Virginia

Answers (1)

walt auvil
wv covenant not to compete

there are several questions which would need to be explored before i could advise you on the best course of action. a review of the contract to determine whether it has a choice of law provision - a clause stating which state's law governs the contract - is important because i practice only in wv. if the contract is governed by tn law i would not be able to advise you. as a general matter covenants not to compete are quite dificult to enforce in wv unless substantial separate consideration is given in return for that agreement. an article which i authored on that subject was published in the november 2001 issue of the west virginia lawyer, the journal of the west virginia state bar.

walt auvil
the employment law center, pllc
1208 market street
parkersburg, wv 26101
phone: 304-485-3058
fax: 304-485-6344
auvil@citynet.net

posted by walt auvil  |  Apr 29, 2003 09:22 AM [EST]

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