Unsure of Non-Compete requirements
I signed a non-compete agreement when I was first hired by my former company as a sales rep. I have been recently terminated due poor performance in sales. I signed the agreement on Sept. 19, 2001, but my pay rate changed in March 2002. I was terminated Nov. 8, 2002. I was not asked to resign any agreement when my pay rate changed in March. Can my former company enforce this if I go to work for a competing company? Also, my agreement says that I cannot work for a company within a 100 mile radius of my office? What if my sales territory would be different with the second company, therefore not calling on the same accounts, but is within 100 mile radius of my old office?
Thank You!
Answers (1)
You describe two potential defenses to a suit by your former employer to enforce your non-compete. The first is that, with the pay change in March, the deal changed, such that the non-compete no longer applied. This defense will depend on the specific language of your non-compete and is probably a long shot. At best, you might be able to argue that the agreement wtih the non-compete in it ended with the pay change, such that the non-compete period began to run then. Most agreements do not tie their termination to a change in compensation, however, so this would be a bit of a surprising result.
The better defense is that you do not pose a threat to your former employer if you are not calling on any former customers or prospects. For starters, 100 miles is a significant geographic scope. Unless you actually sold throughout that region, a court could be persuaded to not enforce it. Finally, a court should only enforce a non-compete to the extent necessary to protect the employer. Therefore, if you can prove that you are not calling and cannot call on your former customers or prospects, you may be able to avoid it.
The problem is that, if your former employer is inclined to enforce the agreement, you have to get through a lawsuit to find out if it is enforceable. Another employer might not be willing to hire you.
If you would like to discuss this in more detail, we offer an initial consultation for $200.00. I would be willing to do it by telephone to save you the trip up from Columbus, as I am in Akron.
Regards,
Neil.
posted by Neil Klingshirn | Nov 25, 2002 09:49 AM [EST]
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