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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6680
Experience:  Significant experience in all areas of employment law.
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I am an independent contractor. The client (in the middle of

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I am an independent contractor. The client (in the middle of the job) has asked me to sign a non compete agreement. In it, he lists 2 years for the non compete to be in effect (I will only agree to one), but he lists 4 states CA, (where he is based and where the conference that I work on is held), FL, where I live, MA and NY. I don't feel this is fair to be listing all this states. This seems very excessive, especially since I am a contractor and I never know where my next contract will be. Any advise?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 11 months ago.
Good morning and thank you for entrusting me to answer your question. I will do everything I can to assist you.

First of all, California is a state which strongly disfavors non-compete agreements. So much so, in fact, that Califonria Business & Professions Code 16600 invalidates ALL such agreements unless they fall within one of the specifically enumerated exceptions set forth in B & P 16600(b). The exceptions relate only to circumstances in which a business owner is selling their business and signs an accompanying non-compete (the idea being someone shouldn't be allowed to sell their business and then turn right around and compete with it), or to circumstances involving the use of trade secrets.

Your circumstance implicates neither of these exceptions, and so any non-compete agreement you sign would be completely unenforceable in the state of California.

Where things become more complex is that your agreement purports to limit your ability to compete in other states. Other states do not take as strict a stance on non-compete agreements, and in Florida, MA, and NY, they are generally permissible provided they are reasonable in duration and scope. Two years is not unreasonable for duration, but a non-compete that prohibits you from competing all the way across the country is likely unreasonable in scope, unless it can be shown that your employer has a lot of business in these states, in which case the restrictions could be regarded still as narrowly tailored and be enforceable.

Of course, to enforce the agreement, your employer would then need to retain an out of state attorney and sue you in whichever other state he is claiming you breached the agreement. He can't do it from CA since CA courts weon't enforce these agreements. It seems rather unlikely they'd go through this effort, as does the possibility they'd ever even find OUT that the agreement had been breached from so far away.

Although it would be a bit sneaky, an individual in your circumstance could suggest to limit the agreement to California. Then, if your employer ever sought to enforce it, CA courts would strike it down as 100% invalid. Otherwise, you can sign and take your chances that your employer never finds out about a breach in these other states, if they do that they don't want to go through the trouble and expense of actually suing you, and if they do still that a court finds the agreement unenforceable as not reasonable in scope.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 11 months ago.

Hello,


 


Thank you for such a detailed response. I and the client are quite aware of non competes holding no water in CA which is why he added the addtional states. He said they are the main biotech states (the industry we're working in). I think it is too much. Am I within my rights to request just CA and FL where I lived?


Thanks

Expert:  Patrick, Esq. replied 11 months ago.
Lisa,

Thank you for your reply.

First of all, including these other states simply because they are the "main biotech states" would likely constitute a non-compete that is overly broad in scope according to FL, MA, and NY laws, and thus be unenforceable on that basis alone.

With regard to whether you are within your rights to propose that the agreement pertain only to Florida and California (and for the reasons noted above, there is no purpose to including CA, as such agreement would be plainly void), the answer is that you are always free to negotiate contracts which govern yoiur employment.

However, the real question I suppose you mean to ask is whether your employer can immediately terminate yoiu, change your pay, or take some other retaliatory action against you if you refuse to go along with their broaf non-compete. In other words, do they have leverage to make you sign.

The answer to this question is that it depends entirely upon the terms of your existing contract. If your current contract guarantees you a paticular term of work, then your employer would be in breach of contract by firing you before that term had passed. Likewise, if they do anything else contrary to the terms of your agreement because you refuse to sign or propose something less stringent, that too would be illegal.

So, I'd take a look at the language of your existing contract. Whatever it guarantees cannot be affected by your refusal to agree to the non-compete, or your insistence on more reasonable terms. Whatever is not expressly guaranteed could, at least conceivably, be changed as leverage to get you to sign if you refuse to include all states in the agreement.

Again, please feel free to let me know if you have any further concerns. If this answers your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards XXXXX XXXXX wishes to you moving forward.
Patrick, Esq., Lawyer
Satisfied Customers: 6680
Experience: Significant experience in all areas of employment law.
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