What is necessary for an employer to void a NCA?
I am subject to a 1 year NCA in a geographic location identified as "any location within the United States" (too broad?) on an at-will basis.
I was hired to secure business with a specific prospect which I had very strong ties to and my employer had none.
We are negotiating agreement terms with prospect now, however my employer says that prospect timeline does not meet up with employers expectations and thus will be terminating my employment before EOY.
If released I want to ask for voidance of NCA. What must I make certain I receive from employer, in addition to original signed document?
Answers (1)
First, the geographic scope may not be reasonable. While what is reasonable varies from industry to industry, a nationwide scope may be too broad.
That does not mean, however, that the non-compete is void. A Court will often write in a reasonable term where it finds a term unreasonable.
Second, if you are being let go by your employer, the employer may not be able to enforce the non-compete. They are more easily enforced when the employee leaves the employer of his or own choosing, and then tries to compete. Where an employer lets the employee go, they have less of an interest and there is some case law making non-competes unenforceable in some of those situations.
Third, there is always an issue of whether you are "competing" in your new job. That involves what you and your current employer do, what the new employer does, etc. Employees can sometimes avoid enforcement by working for a company that, while similar, does not exactly "compete" with the employer. Again, the terms of the actual non-compete, which I have not seen, are critical to determining what you can and cannot do.
You do not necessarily want to "void" the non-compete. You just want the employer to not enforce it or, if they do, to have some confidence that you will win. You may be able to get the employer to agree not to try to enforce it since they are letting you go, perhaps as part of a severance package. If they won't agree to that, which you would want in writing, you have to decide, after consultation with an attorney, whether you think it is enforceable and, if so, what it prohibits.
You should ask your employer for a copy of your non-compete, if you don't have one. I would be happy to review it with you and advise you on any potential severance negotiations or as to its enforceability.
Scott R. Leah
Tucker Arensberg
1500 One PPG Place
Pittsburgh, PA 15222
412-594-5551
sleah@tuckerlaw.com
posted by Scott Leah | Dec 21, 2011 12:30 PM [EST]
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