Options for setting aside a non-compete agreement?

LegalChess17

New Member
Jurisdiction
New York
Hi,

I work in tech support and have uploaded a redacted copy of my non-compete agreement which I would like some opinions on.

My issue is that I have accepted a position with a local government agency which is a customer of my former employer. I am feeling pretty sure that they will find out about me working there and I am preparing for the worst (getting sued).

The problem is, I had to take an exam in order to get this government job (which I took a year before I signed the agreement and before it was possible for me to know that they were a customer of my former employer). The position is just not one that I was willing to pass on because of the agreement. It is perfect for me, for my work/life balance and for my eventual retirement.

I will be willing to fight to keep the job despite the agreement so I basically want to know if I have a chance in hell of avoiding getting sued and/or having to leave the job. Any chance to come up with any reasonable arrangement or argument to get past it.

I've heard that agreements may be considered over-broad or burdensome so as to be unenforceable. I am hoping that this is the case but from what I am seeing, the terms of this agreement seem to fall in line with what most courts would consider reasonable (to the law ... not in real life).

I've also heard that the position and impact to the client relationship may be considered? I was a nobody to the client and have no impact to the relationship. They aren't losing any business and I am not interfering in the relationship. Also, I believe they have allowed other employees to take positions with companies they are actively doing business with. In two instances, in roles directly working with the the teams they used to work for.

I regret working at that company now more than ever.
 

Attachments

  • Redacted Agreement.pdf
    4 MB · Views: 3
You are looking for an easy way out by asking a bunch of strangers on the Internet.

What you should be doing is sitting down with an attorney to have him review the agreement. THAT is the only way to be sure of where you stand.

This is really not an issue for an online forum.
 
You don't "set aside" a non-compete agreement, you defend against it if your former employer takes you to court for it.

Meantime, have an attorney review it.
 
You are looking for an easy way out by asking a bunch of strangers on the Internet.

I thought I was posting on a forum where people with legal issues come to seek opinions and feedback on their specific situation (maybe even from lawyers looking to drum up business) before going to a professional. At least that is what I have done with other topics in other online forums.

This is really not an issue for an online forum.

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So if this is not an issue for this online forum, can you please explain what is? Maybe I misread the above.
 
I basically want to know if I have a chance in hell of avoiding getting sued and/or having to leave the job.

Your former employer cannot use a non-compete agreement to prevent you from remaining at your present job (unless it could prove some sort of serious risk of you divulging trade secrets, etc.). There is no way to "avoid[] getting sued," unless you negotiate some sort of agreement with your former employer. Absent that, if your former employer wants to sue you, nothing can prevent that from happening.

I'm not going to put my computer at risk by downloading your PDF file. If you want an attorney to review the document, you'll have to pay one to do it (or you could quote the relevant language here).

By the way, why did you sign the non-compete agreement if you were in the process of obtaining a job which, if accepted, would result in you breaching the agreement?

Regardless of your answer to that question, did you receive anything of value from your former employer in exchange for you signing the agreement?
 
Thank you so much for the links. I will take a look at those. This is what I was hoping to get from my post. Awesome reply.
 
Your former employer cannot use a non-compete agreement to prevent you from remaining at your present job (unless it could prove some sort of serious risk of you divulging trade secrets, etc.). There is no way to "avoid[] getting sued," unless you negotiate some sort of agreement with your former employer. Absent that, if your former employer wants to sue you, nothing can prevent that from happening.

I'm not going to put my computer at risk by downloading your PDF file. If you want an attorney to review the document, you'll have to pay one to do it (or you could quote the relevant language here).

By the way, why did you sign the non-compete agreement if you were in the process of obtaining a job which, if accepted, would result in you breaching the agreement?

Regardless of your answer to that question, did you receive anything of value from your former employer in exchange for you signing the agreement?

Thank you for the thoughtful response and excellent follow up questions. That actually has given me some sense of relief since I'm just a tech support worker. No special trade secrets or anything else special about me or my employment with them. I understand about the PDF.

Let me address 3 main factors listed in most non-compete agreements (from what I've learned so far). For mine, 1) when it applies - any employment of mine with any client or competitor companies, 2) time frame - 1 year from the last date of employment and 3) geography - within 50 miles of any company office location.

I may take the time to post verbatim the entire agreement if I think it will help others.

You bring up a good point asking why I would sign the document which I would like to clarify with additional information.

When I took the exam required for permanent local government employment (i.e. not provisional), there was no guarantee that I would end up obtaining a position. In fact, no guarantee that I'd even get an interview. People have waited decades and never gotten the call. Its just like any other at-will employment. The only difference is that without the exam, you would not be hired as a permanent employee upon appointment. If a qualified person that took the exam applied for the same position, you were in "provisionally", they would have to let you go and offer that other person the position.

Since there was no guarantee that I would end up working in local government or that they would be a client of the company I was about to sign up to work for, I didn't think about it. When I signed, I just looked at the type of business it was (contracted technical support services also known as an "MSP") and decided that I would not work for another MSP anyway and signed it. Obviously, local governments do not function as an MSP so they wouldn't be in direct competition (logically, not sure of legally).

On your other question, I have read that "employment" is usually considered enough of a "benefit" to satisfy that portion of the agreement in a lot of jurisdictions and that was all the compensation I received. I did not receive any signing bonuses, extra compensation or any other consideration for signing. Basically, if you don't sign it, we won't offer you the position.

Your questions have made me think of a couple of things that might also be relevant (part of the purpose of posting to an online forum).

When I signed the non-compete, I was not provided a list of clients the non-compete would apply to in order to make a fair assessment. I didn't think to ask for one and even now, I do not know which companies are "off-limits" (other than the ones I learned of anecdotally during my tenure there). I wonder if not being given this information is grounds for defending against application of the non-compete in my case.

Also, the company has more than one office so going by the 50 mile radius rule of offices could cover half of the US. That would seem to be too broad to be enforceable (according to some of the things I have read so far). That said, my current position is located within 50 miles of the main office so only going by that, it may fall within acceptable distance.

Definitely seems like there is plenty for a local lawyer to review for me. Again, I appreciate all of the great feedback.
 
There are also many case decisions on Google Scholar:

Google Scholar

As much as I use Google, I never knew about Google Scholar. Thank you for that amazing resource. That alone was worth the effort in posting this.

Also, the NY OAG document from 2016 gives me high hopes I will be able to breathe a sigh of relief.

I still intend to secure counsel should a suit be filed but now I can be a partner in my defense instead of a bystander.
 
1) when it applies - any employment of mine with any client or competitor companies, 2) time frame - 1 year from the last date of employment and 3) geography - within 50 miles of any company office location.

That's exactly what I read in yours.

There are places where that might be reasonable (like Southern California where job opportunities are spread out for hundreds of miles, and not reasonable (like NYC where it would make you virtually unemployable).

I may take the time to post verbatim the entire agreement if I think it will help others.

It won't. Note to others: It's safe to open the link to the agreement. I did.

You bring up a good point asking why I would sign the document which I would like to clarify with additional information.

I already know why, having been a victim of one myself. I wanted the job and didn't think about the consequences of signing the agreement. That was almost 30 years ago, the consequences were costly, and I never signed one since.

I have read that "employment" is usually considered enough of a "benefit" to satisfy that portion of the agreement in a lot of jurisdictions and that was all the compensation I received.

True, but some jurisdictions require separate consideration. You will have to review NY case law to see how NY courts address that.

I do not know which companies are "off-limits" (other than the ones I learned of anecdotally during my tenure there). I wonder if not being given this information is grounds for defending against application of the non-compete in my case.

That could be one element of your defense, but not the primary one. If a court upholds the entire non-compete that element won't matter. But if the court finds chinks in the armor, that could help.

Also, the company has more than one office so going by the 50 mile radius rule of offices could cover half of the US. That would seem to be too broad to be enforceable (according to some of the things I have read so far). That said, my current position is located within 50 miles of the main office so only going by that, it may fall within acceptable distance.

Again, an element to be addressed along with any others that come up.
 
I already know why, having been a victim of one myself. I wanted the job and didn't think about the consequences of signing the agreement. That was almost 30 years ago, the consequences were costly, and I never signed one since.

True. It was my first (and last) non-compete agreement.

True, but some jurisdictions require separate consideration. You will have to review NY case law to see how NY courts address that.

It was the first thing I started doing this morning. :)

I believe anyone else who finds this thread will find the help they are looking for with regards to non-compete agreements (with links to further research)!

Thank you to everyone with helpful responses for your insight and assistance.
 
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