Will Non-Compete be enforceable if the employer not paying the salary during the Non-Compete period

Hello:

My non-compete says a few month non-compete period, but did not say whether the employer to pay the salary or not during this period. So will they pay during this non-compete period, if not paid by them, will this non-compete contract be able to enfore?

Thanks for your professional advice!

2 answers  |  asked May 17, 2011 07:23 AM [EST]  |  applies to New York

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Answers (2)

Albert Rizzo
Whether your employer will pay your salary during the non-compete period should be stated in your agreement. If it does not state that the employer will pay you, then you probably will not be paid.

The answer to the question whether or not the non-compete is enforceable depends on many factors, including, whether you have received "consideration" for the promise not to compete. Consideration can be in the form of continued or additional salary and/or benefits during the period of non-competition. Therefore, if you do not receive your salary during that period, it is possible that the non-compete will not be enforceable because you have not received "consideration" for your promise.

However, undertstand that this area of the law is constantly evolving and it is difficult to give a definitive answer to your questions without first reviewing the specific terms of your non-compete agreement.

posted by Albert Rizzo  |  May 17, 2011 10:12 AM [EST]
Jeanne M. Valentine
Many factors will determine whether a non-compete is enforceable. First, employers are not obligated by law to pay you during the period you're restricted from competing but the non-compete must be supported by "consideration" - this could be a higher salary during your employment than you would have made without the non-compete or a severance payment or something else. It depends on the language in the contract and your circumstances. But you need to know that non-competes have many other restrictions as well: it must be limited in location or to specific customers, and must give you the ability to work during the period of non-competition, even if it's not in the business you were in, as long as it's only for a limited period of time.

posted by Jeanne M. Valentine  |  May 17, 2011 07:41 AM [EST]

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