how to nullify non-compete and do i have the right?

I may be offered a job at a company that has similar clients of my current employment and I signed a non-compete. I should first state that I am not a sales person, simply the Quasimodo behind the scenes and have little to no contact with these clients. My current employment has been delaying payroll (although only by a few days) and sometimes even bounces payroll checks (although none of mine). We are paid Bi-weekly, and I must say that every other Friday is wrought with anxiety. Our vendors direct their anger at my co-workers and I for gross delays in their payment and I fear my name has been smeared in my (small) industry. I feel I am on a sinking ship, but they won�t lay anyone off. I don�t think these facts have anything to do with the non-compete but just wanted to state why I really need to leave. My question is, what do I do first to prepare to break this non-compete and do I have any right to? Also, is there a way to nullify it, if it is over broad or has no geographic limit, before I take new employment? Here are the terms to which I signed (although I just photocopied my non-compete from my personnel file and it was not signed by my employer.)

Competitive Employment. �For a period of one year (1) after the termination of my employment with Company (regardless of the reason for termination), (a) I will not engage in any employment, consulting, or other activity involving computer programming, graphic design, Internet or web site development, e-commerce, video or film production or editing, medical writing or editing, or multimedia programming, or design that competes with the business, proposed business or business interests of Company, and I will not assist any other person or entity in doing so, without Company�s prior written consent, and (b) I will not solicit any of Company�s clients or prospective clients to perform any services for such clients or prospective clients involving computer programming, graphic design, Internet or web site development, e-commerce, video or film production or editing, medical writing or editing, or multimedia programming, or design, and I will not assist any other person or entity in doing so, without Company�s prior written consent. In the event that I generate business from the following entities while employed by Company and for Company�s benefit, then provisions of paragraphs (a) and (b) of this section 5 shall not apply to each entity from which such business is generated:�

3 answers  |  asked Sep 8, 2006 10:13 PM [EST]  |  applies to Pennsylvania

Unlock Non-Compete Agreements: Keys to Escape

Answers (3)

Harold Goldner
Non-Compete Covenants in Pennsylvania

The courts generally do not favor non-compete covenants in Pennsylvania, but this does not mean they won't enforce them.

Such covenants have to be reasonable as to scope, distance and time, and have to be reasonably related to a cognizable interest of the employer.

Therefore, the enforceability of these covenants varies from industry to industry. If you are working for a web design company, where technology changes every few months, a 2 year covenant, for instance, will probably be too long. If you are a barber, a covenant restricting you to a few miles for a year or to would probably be valid.

So, it goes without saying, you should seek legal counsel who can review not just your contract, but also the surrounding circumstances. It is possible that these payroll irregularities breach the contract, and therefore free you from the covenant altogether.

posted by Harold Goldner  |  Sep 9, 2006 12:08 PM [EST]
Christopher Ezold
The noncompete may be invalid, or may be invalidated by your employer's actions.

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, the noncompete may be invalid, or may be invalidated by your employer's actions. You are correct that the lack of a geographic limitation may render the noncompete invalid. However, there is also a nonsolicitation clause that generally does not need a geographic component, as it is implicit in the nonsolicitation of particular clients. You may therefore be able to work in a competitive position for a year, as long as you don't provide services to or solicit a customer of your employer.

The fact that you have little or no contact with your employer's clients may render the nonsolicitation invalid; however, I would need further facts to make that determination.

Finally, your employer may have already breached the contract with you, or may do so in the future, by nonpayment or late payment of wages. Again, I would need further facts to make this determination.

It is likely, therefore, that the contract is unenforceable against you. Further, your employer's practical situation may preclude them from pursuing you regardless of the enforceability of the contract. You should contact an attorney to discuss the issues in detail, however, before taking a competing job or soliciting or working for any client of your current employer. There are practical and legal steps you can take to avoid the restrictions in the contract that an attorney will lay out for you.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com

posted by Christopher Ezold  |  Sep 9, 2006 11:44 AM [EST]
Christopher Ezold
The noncompete may be invalid, or may be invalidated by your employer's actions.

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, the noncompete may be invalid, or may be invalidated by your employer's actions. You are correct that the lack of a geographic limitation may render the noncompete invalid. However, there is also a nonsolicitation clause that generally does not need a geographic component, as it is implicit in the nonsolicitation of particular clients. You may therefore be able to work in a competitive position for a year, as long as you don't provide services to or solicit a customer of your employer.

The fact that you have little or no contact with your employer's clients may render the nonsolicitation invalid; however, I would need further facts to make that determination.

Finally, your employer may have already breached the contract with you, or may do so in the future, by nonpayment or late payment of wages. Again, I would need further facts to make this determination.

It is likely, therefore, that the contract is unenforceable against you. Further, your employer's practical situation may preclude them from pursuing you regardless of the enforceability of the contract. You should contact an attorney to discuss the issues in detail, however, before taking a competing job or soliciting or working for any client of your current employer. There are practical and legal steps you can take to avoid the restrictions in the contract that an attorney will lay out for you.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com

posted by Christopher Ezold  |  Sep 9, 2006 11:15 AM [EST]

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