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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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I was just off and have a very broad reaching non-compete as

Customer Question

I was just laid off and have a very broad reaching non-compete as part of my employment agreement. I am being offered a 3 week severance but the non-compete covers a full year. When I asked the employer to revoke the non-compete, they refused. However they are saying I can work for some organizations that would fall within the non-compete (at their discretion). 1) Should I be getting a full year severance (the time frame of the non-compete) and 2) Am I held to their approval in searching for employment.
Please advise.
Thank you.
Jennifer
Submitted: 11 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 11 months ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

In NY non-compete agreements may be enforced by the employer so long as they are reasonable with regard to time and geographical area, and protect a legitimate business interest of the employer. Generally, restrictions of up to two years and covering areas where the employer actually does business will be considered reasonable by a court.

So, a non-compete of one year as you describe would most likely be enforceable. That being the case, your employer would be free to choose whether it wants to enforce the non-compete on an "employer by employer" basis, as it appears they are indicating they will. So, to answer your question directly, you can be "held to their approval" with regard to searching for employment, provided you are seeking employment with competitors that fall within the scope of the non-compete. You can certainly try to negotiate less restrictive non-compete terms (i.e. 6 month duration, or exempting specific prospective employers from coverage), but this is purely a matter of negotiation as there is no law that would compel your employer to modify the non-compete or refrain from enforcing it.

I hope that you find this information helpful. 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 moving forward.

Customer: replied 11 months ago.
Thank you for your reply Patrick.I don't think you addressed the question of severance (currently offered 3 weeks for a VP level position).
Expert:  Patrick, Esq. replied 11 months ago.

Sorry about not addressing that.

Severance is a tricky issue because no law requires the payment of severance in any amount, except in certain very limited circumstances involving mass layoffs at large companies on short notice. Employers are generally motivated to offer severance in exchange for a waiver of any legal rights the employee may have to sue. Naturally, therefore, the amount of severance offered tends to correlate to the "litigation risk" the employer believes the employee presents. For instance, if the employee is being "laid off" shortly after complaning about sexual harassment, the employer would likely assess a large exposure, as it could be alleged the layoff is really a retaliatory termination. In that case, they would offer a large severance package.

But the thing is, most employees don't have a basis to sue when they are let go. This is because employment is "at will" absent an agreement to the contrary. So, it is difficult to negotiate severance because they really don't have much leverage to be making demands.

The customary rule of thumb when the employee does not present a significant "litigation risk" is 1-2 weeks severance per year of employment. One year's severance would be very large, and likely not to be expected unless you have been working for this employer for 20+ years.

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

Very best wishes.

Expert:  Patrick, Esq. replied 11 months ago.

Were you able to view my response?

Customer: replied 11 months ago.
thanks
Expert:  Patrick, Esq. replied 11 months ago.

You are very welcome. If you do not have any further questions for the time being, please kindly remember to positively rate my service. This is how I receive credit for my time and so is very much appreciated.

Best wishes and happy holidays to you.

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