Jurisdiction in a non-compete
Hi. I just got blindsided by a company I reped for for 14 years. They basically just sent out a mass email to everyone saying I was terminated and not to talk to me anymore. That's the first I heard. Now I got an email saying I've been terminated and I have to sign another non-compete or they will not pay my earned commissions for the previous two months or any going forward.
I already had a non-compete in the contract agreement but it definitely stated 1 months notice either way had to be given which they have violated now. It seems to be a problem on several levels...but my real question is where would this be adjudicated? The company is based in Ohio, but I signed on in Atlanta and was always the Atlanta rep. I understand Ga. is very favorable to employees right to work and Ohio is not especially.
Answers (1)
If the agreement is clear that the employer must give you a month's notice for the noncompete to be enforceable, it should not be an issue in Georgia or Ohio.
However, if it is less than crystal clear, you may be forced to look at whether the agreement could be enforced in Ohio or only Georgia. You are correct that Georgia courts take a harsh view of noncompetes and only enforce them if they are carefully drafted and that Ohio is much more employer-friendly.
To determine which law applies, there are a few issues. The first is whether or not there is an "exclusive venue provision." If the agreement states that any litigation must take place only in Ohio and that personal jurisdiction defenses are waived, you may be faced with an Ohio location for any litigation. If there is no such provision, the company would have to show that Ohio courts should have personal jurisdiction over you in that state (by either showing that you were in Ohio to satisfy some of your obligations under the contract or went there enough, although unrelated to the contract, to be subject to personal jurisdiction up there). There also might be a provision in the agreement that states that jurisdiction is proper, but not exclusive, in Ohio. If that is the case, it literally could be a race to the courthouse, with them trying to get to Ohio courts before you could get to Georgia courts.
There's really no single answer to your question without knowing all of the terms of the agreement. You may want to spend a couple of hundred bucks to get an opinion from an attorney experienced in restrictive covenant law (which would include noncompetes).
As to paying you your earned commissions, they cannot withhold that because you refuse to sign a new noncompete unless they have a policy or a contract showing that they do not owe you this money. Again, that is very general information, not tailored to your specific situation, and the individual facts of every situation are different, so you may want to talk to an attorney about that as well.
The foregoing is general information, not specific legal advice. No attorney/client relationship has been created or should be implied.
posted by j kl | Apr 25, 2008 08:59 AM [EST]
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