QUESTION

Can an employer restrict you to not use your skills ever even after termination?

Asked on Jul 11th, 2014 on Business Law - North Carolina
More details to this question:
A quote from the Non-Compete Agreement: "The consultant agree (sic) never even after termination compete with the company, "Business Name Omitted." Compete means by providing the same services that the company is providing."
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1 ANSWER

Appellate Practice Attorney serving New York, NY
In the U.S., except in California ( where such provisons are not enforceable), restrictive covenants can restrict a former employee's right to compete against his/her former employer, but such clauses are carefully scrutinized by Courts and not always enforced.  Enforceability depends on numerous factors, including: how long the restriction runs for; how broad it is geographically; whether the employee received any extra consideration for agreeing to the non-compete; whether the employee has any special skills; the amount of time and money, if any, that the former employer spent to train the former employee; whether the employee was terminated without cause, with causae, or left voluntarily; how easy it would be for the former employee to find employment without violating the covenant; etc.  If, as seems to be, this provision prevents you from ever competing with your former employer, and you were just an employee (not an owner) of the former employer, it will almost certainly be considered overbroad and unenforceable.  However, it is possible, although unlikely with a provision as broad as this one, that, rather than tossing out the whole provisoin entirely, a Court may modify it so that the Court considers it reasonable.  For example, rather than preventing you from competing forever, the Court may modify the clause so that it only bars you from competing for a year after termination.
Answered on Jul 11th, 2014 at 9:52 AM

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