QUESTION

Received a non solicitation agreement today and asked to sign under duress.

Asked on Oct 25th, 2013 on Employment Contracts - Illinois
More details to this question:
I have been employed for 4.3 yrs. The term is 18 months. I am receiving no additional compensation for signing except the retention of my job until they decide to terminate me......The agreement is specific to the musts and must-nots of the employee but basically has me admitting that if I sign, I waive all claims to use the defense that the claims by my employer are not accurate. The agreement reads "Employer may enforce all rights or obligations under Section 3 in a court of equity by a decree of specific performance, or by injunctive relief without posting bond or other security, an employeeand his successors and assigns against whom such action or proceeding is brought hereby waive(s)the claim and defense that employer has an adequate remedy at law or is not being irreparaby injured, and such defending party shall not raiseor suggest in any action or proceeding that such remedy at law exists or that the injury as not been, or is not being sustained"...
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1 ANSWER

Appellate Practice Attorney serving New York, NY
This provision does not waive any defense that your employer's potential claims are inaccurate, and I can't see any such waiver being enforced by any Court anyway.  In a lawsuit over the alleged breach of a restrictive covenant in employment, the employer will often seek a preliminary injunction to keep the employee from violating the covenant during the pendency of the lawsuit.  To do so, the employer will have to show that it has no adequate remedy at law for the alleged breach, i.e. that money damages will not, for whatever reason, be sufficient.  The clause says that, if you violate the covenant, your current employer will have no adequate remedy at law.  Even if enforced, this will in no way prevent you from raising defenses against the clause, such as that the employer materially breached the contract first.  If the preliminary injunction is granted, the Court will normally require the employer to post a bond to cover damages the injunction may cause the employee if it turns out that the employer was in the wrong.  You are being asked to agree that your former employer doesn't  have to post a bond. I think it unlikely that any Court will consider the first purported waiver to be binding, but more likely that it will enforce the second. I don't see any legal duress which would invalidate the contract.   However, restrictive convenants in employment are often held to be unenforceable, depending on many factors, including whether the employee has specialized skills or knowledge, whether the employer has invested a great deal of time and money training the employee, how long the covenant is to run and how broad it is in geographical scope and whether it needs to run as long or be as broad to protect the employer's legitimate business interests, whether the employee was privy to any trade secrets or proprietary information of the employer, whether the employee received any additional compensation (beyond continued employment) for signing the non-compete, whether the clause prohibits all competition or just some forms of it (such as a restriction on soliciting the employer's customers with whom the employee dealt during his last year before his employment was terminated), whether the employee quit or was fired and, if so, whether he was fired for cause, the competitive environment of the industry involved, etc. etc. In some cases, a Court may "blue  pencil" a clause so that it is enforceable.  For example, if a Court feels that a restrictive covenant prohibiting a former employee from working for any competitor within 50 miles for two years is too broad, it may prohibit the former employee from working for any competitor within 10 miles for a year after his employment terminated.  Whether a Court will edit a clause to make it enforceable or simply hold the entire provision unenforceable often depends on how overreaching the Court thinks the clause was in the first place. 
Answered on Oct 25th, 2013 at 12:29 PM

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