specified or implied non-compete for mobilized reservists?
Background: Several years ago I worked at a consulting firm. At that time, the company did not have a non-compete policy, nor did I have an non compete agreement with them. I was involuntarily mobilized to active duty. Upon reporting to my duty station, I discovered that my duties gave me decent chunks of off-duty time, so I notified my supervisor, formed a company in another state, and offered to subcontract with my employer to provide consulting services during my off-duty periods to help their case load. Higher management turned down my proposal. While I obviously had the capability to directly compete, due to time conflicts, I had no other prospects for my little company until a couple of years later, while still on active duty, several prospects (NOT clients of my employer) approached me and asked for help with small projects that are not part of the employer's products and services. As my military duties prevented me from fully participating in the jobs, I subcontracted out the services, but provided some proposal writing and management top-cover. I recieved no compensation for this as all the money went to the subs, except for some travel reimbursement. Due to lack of further clients, my little company cease operation shortly thereafter.
The problem: now that my military service is over, and I am attempting to return to my position with the consulting company, they are giving me flak about my little company and claiming that I was in competition with them, and that I am in violation of a non-compete policy enacted following my departure on military leave of absence. Is there such an specified or implied non-compete while on extended military leave of absence?
Answers (1)
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, noncompete 'policies' are not effective in Pennsylvania, or in any other state I am aware of. You must sign a noncompete agreement before it can be enforced against you, and you must get something in return for your agreement not to compete (i.e. new employment, a raise, a promotion, etc.). I suspect what is actually happening is that your employer is attempting to avoid its obligation under USERRA to rehire you after your military service. Whether they have that obligation or not depends on factors that are not set forth in your inquiry.
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.
401 City Line Avenue,
Suite 904
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
posted by Christopher Ezold | Nov 18, 2004 07:59 AM [EST]
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