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Ely, Counselor at Law
Category: Employment Law
Satisfied Customers: 99506
Experience:  Years of experience in running a medium sized law firm.
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I have a question regarding a non-compete agreement. I

Customer Question

I have a question regarding a non-compete agreement. I worked for a construction company doing home improvement sales. Due to differences in opinion, we parted ways in Sept of 2015. I had applied to another company that is also in the construction field and my previous owner wrote a release of my non-compete to my new employer. The letter releasing me said: Attn "Company X". It simply said that "I C.O.O. of Company Y have hereby released Kyle ****** from his non-compete. In no where in the release form does it mention that they were only releasing me to Company X. The letter itself starts off with "To whom it may concern". Since then, Company X and I have parted ways. I found a new job that provided me a promotion to sales manager. However my old employer is trying to enforce the original non-compete. Looking for some advice.
Submitted: 7 months ago.
Category: Employment Law
Expert:  Ely replied 7 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. In these kinds of cases, a Court would read the release based on the following subjective factors:

-what it believes the intended meaning to have been,

-the common translation of the verbiage, and

-the common language in the industry.

If Y wanted to limit the release to X only, then the letter would have (arguably) said that the release is conditional on Kyle working for X only. However, the release is general. Thus arguably, it simply RELEASES the individual from the non-compete all together.

The problem is saying it does not make it so. One has two choices here:

-simply continue working, and hope that Y will simply give up. If they sue, then one can argue that the waiver constitutes a FULL release and the court will make a determination; or

-not wait and file a DECLARATORY JUDGMENT, asking the Court to decide what the release means NOW, without waiting for them to sue. The problem is that this can take a few months just to get to the Court after filing.

Perhaps one may wish to ask their new company's attorney to send a letter stating that the release is being interpreted as the release being complete, and that any action by Y would be immediately rebuked and attorney fees may be asked. Or one's own attorney can write such a letter, as well. Hopefully this would be enough to have Y simply back off without litigation being needed.

Another important factor: an ambiguous clause is often interpreted against the draftor. As such, this gives someone in Kyle's position an advantage in the court's interpretation of the clause.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 7 months ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!

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