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Loren, Attorney
Category: Business Law
Satisfied Customers: 23559
Experience:  30 years experience representing clients .
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Non-Compete Clarification for Software Engineer

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I'm in Knoxville TN & looking to join a firm remotely that is based out of NY. They have provided me with an NDA & non-compete to review before signing the offer letter and I was hoping for some

clarification on the following section, in particular section b & c.


I have attached the entire document for convenience as well.


3. Non-Compete (a) Competitive Ventures. I shall not directly or indirectly engage in or participate as an owner, partner, stockholder, officer, employee, director, agent out of or consultant for any business competitive with any business of Company, without the written consent of company; provided, however, that this provision shall not prevent me from investing as less than a 1% stockholder in the securities of any company listed on a national securities exchange or quoted on an automated quotation system. The business of the Company shall be considered any and all software and interactive website development, design, and/or consulting services, and/or any products and applications developed and marketed by the Company upon which I have worked on, developed, maintained, or acted as a sales representative for in the twelve months prior to My removal or departure from the Company. Any position considered “in-house” and not engaged in outsourced development or consulting services shall not be considered competitive. (b) Term. The non-compete period shall cover the entire term of affiliation as an employee of the Company and the one year period subsequent to My removal or departure from the Company. If My employment is terminated by the company, other than for cause, the non-compete provision shall terminate four months after My last day of employment. (c) Region. Because the Internet is so pervasive and trans-border, I recognize that the interests of the Company cannot be limited to one particular state or region. Therefore, unless otherwise specified or required by law, I agree that the non-compete shall prevent me from the above stated activities unless access to or utilization of that business is restricted to within the borders of one contiguous state located within the United States and outside of the current states in which the Company operates. Otherwise, I am barred from competitive behavior within the United States. If required by law, the non-compete shall be limited to within 50 miles of any location in which I have been based and/or operating in for longer than a three month period, whether consecutive or non-consecutive.

Submitted: 2 years ago.
Category: Business Law
Expert:  Loren replied 2 years ago.
Thank you for using JustAnswer. I am LawGuy and I will do whatever I can to answer your question.

A. The term runs for one year after you leave, unless you are laid off, a reduction in workforce, for example, in which case the term is 4 months.

B. The geographic region covered is the entire USA, which any court is unlikely to find reasonable. Otherwise, and this is the more likely enforceable scenario, it is within 50 miles of the location you have been serving the most or longest for 3 months prior to leaving.

Hope this helps.
Customer: replied 2 years ago.

So it is legal to prohibit me from working in my industry, as trained, for 1 year within 50 miles of my home (or 4 months if laid off)?


As this is a remote position and I won't be relocating to NY, would performing work for another entity somewhere outside the 50 mile radius, but without relocating, still fall in that restriction, or be a valid opportunity to pursue?

Expert:  Loren replied 2 years ago.
It could be held legal. The court would look to what is reasonable within the industry. It is a question of fact rather than law.

The area where you work is relevant, not where you are living. So, yes, so long as it is outside the 50 mile limit, if that is held reasonable, you should be ok.

Also be aware, that a court can rewrite the provisions to be reasonable. So, it the court were to find the one year term unreasonable, they could reduce it to, say 9 months, or 4 months or whatever they deem to be reasonable.
Customer: replied 2 years ago.

And in the event that the company decided to pursue legal action with my departure and joining a new company, I should expect to be sued in Civil court?

Expert:  Loren replied 2 years ago.
It is really a business decision on the part of the ex employer. Non competes are extremely expensive to enforce and, unless it is seen as a real threat, the ex may decide it is not worth the expense given the return.

Just realize that the possibility is there.
Loren, Attorney
Category: Business Law
Satisfied Customers: 23559
Experience: 30 years experience representing clients .
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