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Question:

Hi Jennifer,

My current agreement contains a non-compete with a large radius. I found a job with an employer that also has practices inside the radius, but I will be working at a location outside. Is there a chance my non-compete could still apply and be enforceable?

Thanks, Dr. T

Answer:

Yes. There is a chance the non-compete could apply. Yes, there is a chance it may be enforceable. The devil is in the details. Some non-competes floating around restrict an employee from working for any competitor or operator within the restricted radius (we would have to check language). Whether or not the non-compete would be enforceable is another question... Non-competes are upheld if they are reasonable in scope and geography, protecting a legitimate business interest. While a broad radius may not be viewed as reasonable given the marketplace, impact on employer for violation, etc etc., getting to a position where the non-compete would be held unenforceable is oftentimes quite cost prohibitive for many employees, as it requires getting before a judge willing to render an opinion - oftentimes that take a lot of work and money to get to that point in a litigation challenge. Best case scenario is to try to negotiate a way out, if you failed to negotiate well on your way in.

 

Thanks to Jennifer Kirschenbaum.

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Insights
September 2018