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John, Employment Lawyer
Category: Employment Law
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Experience:  Exclusively practice labor and employment law.
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I have a non-compete clause in a contract that ended a few

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I have a non-compete clause in a contract that ended a few weeks ago. It says I cannot work for a competitor in my former employers' area, which covers most of the state of Nebraska. Although the employer opted not to renew the contract, the contract states that the non-compete is in place for six months following the ending of my employment. Would this be upheld?
Hi, my name is XXXXX XXXXX I’m happy to assist you with your question today.

A non-compete agreement will only be enforced against a former employee if the agreement meets all three prongs of the test laid out by the courts. The law requires that for a non-compete clause to be enforceable, an employer must show reasonableness, in that (1) it has a legitimate business interest sufficient to justify enforcement of the non-compete clause; (2) that the clause does not cause the former employee undue hardship; and (3) that enforcement of the clause will not be harmful to the public.

Under this three part test, courts consider several factors when determining whether a non-compete agreement is reasonable, including: (i) how long the restriction lasts and the geographic area that the restriction covers, (ii) whether the employee was the sole contact with customers, (iii) whether the employee possesses confidential information or trade secrets, (iv) whether the covenant operates to bar the employee's sole means of support, (v) whether the covenant seeks to stifle the inherent skill and experience of the employee, (vi) the likelihood that the employee can find other employment if the restriction is enforced and (vii) whether the benefit to the employer is disproportional to the detriment of the employee.

The underscored factors above support that the agreement should be voided. Specifically, the employer terminated you, which leads to the the finding that the employer really didn't value the employer doesn't really need a non-compete...otherwise they wouldn't be letting employees go. The geographic restriction is probably too wide. It is also inherently unfair to terminate someone then attempt to take away their earning potential by enforcing a non-compete. These factors would all support not enforcing the agreement

However, unless you are willing to take the matter to court to have the contract ruled invalid, you'll not truly know if the employer can enforce its agreement. In short, only a court can definitively tell you whether the non-compete is enforceable, but these are the factors that would be considered by a court, and you'd have I believe a good chance to have the non-compete ruled unenforceable.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.


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