non compete & pay issues

I worked for a company called XXX for 15 years. I left this company to become employed by another company that sold the same type of services.. In 2002 I returned to my former employer XXX & continued to sell the same type of services. When I returned to XXX I signed 2 contracts one a typical noncompete agreement and a contract as a sales representative. In the sales agreement XXX agreed to pay me 5% of all my sales & an annual gross salary of $ 29,000 per year. The contract began Jan 15 2002. In 2002 XXX withheld a total $1900 of my salary because business was bad. I was always paid all my commissions. In 2003 they withheld $4400 of my salary and again paid all my commissions. So far in 2004 they have with held $5500 of my salary but paid all my commissions. When XXX withheld money from your salary check they would give you a letter saying that by acceptance of the wage reduction you were given continued employment if you didn't agree than you would be laid off. Sometimes you were not even given this letter they just withheld 40% to 50% of your salary. On June 30th when I received my check & it was again only 50% of my agreed upon salary I told them in writing & orally that I was not accepting 50% pay any longer and was accepting the lay off and left. I had already sold services that was delivered in May and was due money on that in July. The money owed me on those commissions was a little over $5100.00 and probably another 3 or 4 thousand dollars of commission that I had pre sold for future months and due in future months. My question to you is how enforceable is the noncompete agreement (the noncompete was for 2years)It also says that I can never do business with anyone they have ever done business with either directly or indirectly I signed and what are my chances of collecting any of the commissions & money they withheld are there? All together it totals over
$17,000.

2 answers  |  asked Aug 15, 2004 07:59 AM [EST]  |  applies to Indiana

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Answers (2)

Victoria Ursulskis
Wage payment & noncompete

You have two separate issues that may, as a practical matter, intertwine, but they are distinct. Both are matters of contract law--what did your employment agreement specify and what does your noncompete say. (And, what you put in writing when you resigned is another document that has some potential bearing.)Any attempt to answer your questions certainly requires an examination of the documents. It appears that you may have a wage claim, potentially qualified by understanding the facts and impact of your accepting "adjusted" payments (if any).

As to the noncompete, Indiana has fairly well- developed law in that area. It sounds as if you really want to know what would happen if you were sued, should you work for an entity encompassed by the noncompete language. What the language is (or how Indiana law views cetain language)guides a person as to what defenses, if any, might be available in that circumstance. The short answer is that you can't stop anyone that wants to sue from doing so. Ways to approach this situation are best discussed will an attorney who has the full complement of facts and who can point you to alternative approaches.

MEL Moderator's note: This article provides an overview of Indiana non-competition law: http://www.myemploymentlawyer.com/wiki/Indiana-Non-competition-Law.htm

posted by Victoria Ursulskis  |  Aug 22, 2004 9:04 PM [EST]
Brenda Franklin Rodeheffer
Non-compete question

You appear to have some good defenses on your non-compete, and you also appear to have a wage claim. However, each non-compete case is different and you need to have an office consultation with either myself or another employment law to get solid advice.

posted by Brenda Franklin Rodeheffer  |  Aug 16, 2004 2:16 PM [EST]

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