Thank you. On this website, I do not always get to give good news, and this is one of these times.
1) Unless the contract specifically states that it is void if you are terminated as opposed to simply leaving, then the non-compete applies all the same. There is no statutory law that a non-compete is shortened/voided if the party is terminated.
2) However, the non-compete itself may be deemed too long and shortened. This is because it has to be reasonable. See HERE and scroll down to "Reasonableness is Key."
3) One has really three ways to figure out:
a) Simply engage in the work. The risk is that the old company will sue for the breach under the non-compete, in which case one can use the affirmative defense that the NC was not reasonable. There is a possibility the old company will not even know or care, but, this is a risk. If this goes to Court, the Judge decides what is reasonable.
2) File for a declaratory judgment prior to engaging in this work . This is a type of case where one asks the Court to clarify the rights/duties of parties under the law for a contract. The positive is that this has one be the Plaintiff, so there is less risk of being seen liable as no work has yet been performed. The con is that if one loses and the court upholds the non-compete, one may be liable for the old company's legal fees. So you'd be asking the Court to define "reasonable" here, ahead of time.
3) The final option is negotiation, where one asks the old company to simply lift/lessen the non-compete.
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