terminated before probationary period ends

Is a non-compete agreement enforceable when an employee is terminated before they complete a company's probationary period of 3 month's? Is this legal ground to make it unenforceable?

1 answer  |  asked Nov 1, 2006 7:24 PM [EST]  |  applies to Pennsylvania

Answers (1)

Christopher Ezold
The probationary period is irrelevant to a noncompetition agreement.

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 probationary period is irrelevant to a noncompetition agreement. You are no less an employee of an employer if there is a 'probationary period' - you can be hired or fired during your probationary period just as easily as after. Unless you have a contract to the contrary or are in a very narrow range of government employees (who don't have noncompetes anyway), the 'probationary period' is really an illusion. If the noncompete is effective, it'll be just as effective during as well as after the 'probationary period.'

The only out for the employee is that they were terminated; an employer generally does not have a legitimate business interest in enforcing a noncompete against an employee that wasn't good enough to keep. Only if the employee is terminated for reasons such as stealing, gross insubordination, etc., will the noncompete generally be enforcible.

The situation you describe is fact-dependent; the reasons for the termination are the pivot on which the enforcibility of the noncompete will turn.

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

posted by Christopher Ezold  |  Nov 2, 2006 5:08 PM [EST]

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