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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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Changing Employer in California (same client)

Resolved Question:

My employer's head quarters is at New Jersey. I am currently working for a client in California. I want to switch to an employer head quartered in California. But the new employer is also servicing the same client. Can my current employer stop me (because I signed a NDA and NCA) from joining. Please help.

Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
Noncompete clauses are entirely unenforceable under California law. Bus & Prof. Code § 16600.

Your current employer cannot successfully sue the employer, because to do so would be to limit a California employer's choice of employees in violation of California law. And, the current employer cannot sue you, because you have no control over your employer's choice of clients.

Hope this helps.

Customer: replied 3 years ago.
Thanks for your answer. Does this hold good, even if I have signed the NDA and NCA forms for California?
Expert:  socrateaser replied 3 years ago.
An NDA is enforceable in California. An NCA is not.

Although there may be issues connected to your question that could be tested in court, the principal difficulty confronting your current employer is that while it may be able prevent you from competing directly against your current employer, it cannot prevent your new employer from competing, because that employer has no NCA contract with your current employer.

So, the issue devolves into questions about the exact language of your current NCA, and your job description for the new employer. Your current NCA would have to state that you cannot work for a new employer in any capacity, if that employer competes with your current employer. The question for a court would be whether or not your activities for the new employer actually represented competition for the current employer, and if so, whether or not that competition was sufficiently injurious to warrant an injunction against your continued employment.

Also, it would be necessary that your current employer discover that you are employed by a competitor, and then determine that your employment represents a genuine threat of lost business. This is not always easily accomplished.

The point is that a lawsuit against you is a non-trivial and extremely costly exercise both for the plaintiff and defendant. Were it me, I would not accept employment with the new employer unless that employer agreed to indemnify me against the cost of defending a legal action against the current employer. Otherwise, even if you are ultimately sued and you prevail, you could burn through a year's salary defending yourself.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser, Lawyer
Satisfied Customers: 34867
Experience: Retired (mostly)
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