[LTPC-discussions] non compete
ltpc-disc@ltpcalums.com
ltpc-disc@ltpcalums.com
Tue, 5 Aug 2003 16:07:12 EDT
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Title: Is Non-compete Agreement enforceable if the employer has no=20
more business with the client=20
Question: I was laid off from the current employer (Say, X) because they=20
don't have any clients and its hard to keep all the consultants. =A0
=A0
I signed a non-compete agreement with X when I joined them 2 years ago. It=20
says that I can't work with the client, that I had been working with during=20=
12=20
months before termination, for 12 months after termination. I worked with a=20
client (Say, Y) during the past 12 months. =A0
=A0
Now, X has no business with Y (In fact, X is out of preferred vendors list o=
f=20
Y because of high billing rates). Another company (Say Z) is trying to place=
=20
me with Y. X doesn't want to release me from non-compete because they think=20
their business is impacted. =A0
=A0
On top of it, X has released another former employee from this non-compete=20
agreement, who was laid off a month before me. This is totally discriminatio=
n. =A0
=A0
Can I go to court against X? =A0
Jack =20
Title: You can file suit for a ruling that old employer has no business=20
interest . =20
By: <A HREF=3D"http://www.myemploymentlawyer.com/mel/profile.php3?id=3DN=
eil+Klingshirn">Neil Klingshirn</A>=20
Answer: Hi: =A0
=A0
Ohio courts generally enforce non-competes only to the extent the employer=20
who wants to enforce it can show that enforcement is necessary to protect a=20
legitimate business interest.=A0 In your case, the business interest that th=
e=20
employer would claim to protect is a customer who has chosen not to do busin=
ess with=20
your old employer.=A0 Therefore, your old employer will have difficulty argu=
ing=20
that it still has a business interest to protect. =A0
=A0
As for waiving the non-compete for another employee but not for you, it is=20
discrimination, but probably not unlawful discrimination.=A0 That is, unless=
you=20
can prove that the employer is refusing to waive your non-compete because of=
=20
your race, age, gender, national origin or other unlawful reason, it is allo=
wed=20
to discriminate. =A0
=A0
Importantly, you may still be able to use the fact of the waiver for the=20
other employee as proof that the employer has no business interest to protec=
t in=20
your case.=A0 That is, if it had such an interest, it would not have waived=20=
the=20
non-compete for the other employee. =A0
=A0
Finally, as for whether you can sue the old employer, Ohio law allows you to=
=20
file a "declaratory judgment" action.=A0 This suit will ask a court to "decl=
are"=20
whether the non-compete is enforceable.=A0 Again, your best argument that it=
is=20
not is that the employer no longer has a business interest to protect. =A0
=A0
I suggest that you hire an Ohio attorney near you to write a letter to your=20
old employer explaining all of this.=A0 Your employer should be willing to=20
negotiate a release of your agreement.=A0 If you would like any further help=
, please=20
call. =A0
=A0
Regards, =A0
=A0
Neil. =20
Keywords: Discrimination Non-compete =20
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<B>Title: </B> Is Non-compete Agreement enforceable if the employer=20=
has no more business with the client <BR>
<B>Question: </B> I was laid off from the current employer (Say, X) because=
they don't have any clients and its hard to keep all the consultants. =A0<B=
R>
=A0<BR>
I signed a non-compete agreement with X when I joined them 2 years ago. It s=
ays that I can't work with the client, that I had been working with during 1=
2 months before termination, for 12 months after termination. I worked with=20=
a client (Say, Y) during the past 12 months. =A0<BR>
=A0<BR>
Now, X has no business with Y (In fact, X is out of preferred vendors list o=
f Y because of high billing rates). Another company (Say Z) is trying to pla=
ce me with Y. X doesn't want to release me from non-compete because they thi=
nk their business is impacted. =A0<BR>
=A0<BR>
On top of it, X has released another former employee from this non-compete a=
greement, who was laid off a month before me. This is totally discrimination=
. =A0<BR>
=A0<BR>
Can I go to court against X? =A0<BR>
Jack <BR>
<B>Title: </B> You can file suit for a ruling that old employer has no busin=
ess interest . <BR>
<B>By: </B> <A HREF=3D"http://www.myemploymentlawyer.com/mel/profile.php3=
?id=3DNeil+Klingshirn">Neil Klingshirn</A> <BR>
<B>Answer: </B> Hi: =A0<BR>
=A0<BR>
Ohio courts generally enforce non-competes only to the extent the employer w=
ho wants to enforce it can show that enforcement is necessary to protect a l=
egitimate business interest.=A0 In your case, the business interest that the=
employer would claim to protect is a customer who has chosen not to do busi=
ness with your old employer.=A0 Therefore, your old employer will have diffi=
culty arguing that it still has a business interest to protect. =A0<BR>
=A0<BR>
As for waiving the non-compete for another employee but not for you, it is d=
iscrimination, but probably not unlawful discrimination.=A0 That is, unless=20=
you can prove that the employer is refusing to waive your non-compete becaus=
e of your race, age, gender, national origin or other unlawful reason, it is=
allowed to discriminate. =A0<BR>
=A0<BR>
Importantly, you may still be able to use the fact of the waiver for the oth=
er employee as proof that the employer has no business interest to protect i=
n your case.=A0 That is, if it had such an interest, it would not have waive=
d the non-compete for the other employee. =A0<BR>
=A0<BR>
Finally, as for whether you can sue the old employer, Ohio law allows you to=
file a "declaratory judgment" action.=A0 This suit will ask a court to "dec=
lare" whether the non-compete is enforceable.=A0 Again, your best argument t=
hat it is not is that the employer no longer has a business interest to prot=
ect. =A0<BR>
=A0<BR>
I suggest that you hire an Ohio attorney near you to write a letter to your=20=
old employer explaining all of this.=A0 Your employer should be willing to n=
egotiate a release of your agreement.=A0 If you would like any further help,=
please call. =A0<BR>
=A0<BR>
Regards, =A0<BR>
=A0<BR>
Neil. <BR>
<B>Keywords: </B> Discrimination Non-compete <BR>
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