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Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 34246
Experience:  16 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
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My non compete states I will not, period of 1yr after ending

Customer Question

My non compete states I will not, for a period of 1yr after ending employment with SunGard in any nonclerical pos. terminates for any reason,directly or through others,own,operate, control,or participate in the ownnership,mngmnt,oper, or control of,be employed or recv comp or benefits from, any business that competes with any part of SunGard. If my responsibilities are limited to a defined terr or market, then this non-competition provision will apply only to the terr or market for which I was responsible during the last 2yrs of employment at SunGard. Governed by Penn. state law. SunGard was bought by FIS Global on 12.31.15, my benefits (retirment&medical) were reduced, and when I was promoted in 2015 I was told the raise for it would take effect when comp was done in Q1 2016, but was told that due to cost cutting there was no money to pay me anything more that the standard 3% COL raise. I am hoping I can leave the firm and claim they have not acted in good faith and this non-compete is not valid.
Thx,
Tom Price
Submitted: 10 months ago.
Category: Legal
Expert:  Barrister replied 10 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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Are you under a written employment contract that specified a pay increase that was mandated? (not what they told you verbally, I am asking about something on paper)

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If so, does your written employment contract state specific retirement and medical benefits that the employer is contractually obligated to pay?

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When were you required to sign the non-compete, when you were initially employed or later on after you were already employed?

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thanks

Barrister

Customer: replied 10 months ago.
Raise was not in writing, and non compete was signed when I started....part of my offer letter.
Expert:  Barrister replied 10 months ago.

Ok, I hate to say it, but if you are not under a fixed term written employment contract, all employment in NY is considered "at will". What this means is that an employee can quit or an employer can fire or change the terms of employment (change hours, location, duties, pay, etc.) at any time for any or no reason at all.

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So without a written contract, they can give you a raise, take one back or reduce your pay at any time with notice. Further, if there was no contractual obligation for the pay raise, which it doesnt' sound like there was, then they aren't in breach of any contract.

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The non-compete contract is something that is completely separate from any contractual obligations for compensation. So even if they were in breach of a written compensation agreement, that wouldn't have anything to do with the enforceability of a non-compete because they are two completely different contractual topics.

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So bot***** *****ne is that since there is no written contract for a pay increase, there is no breach and even if there were, that wouldn't give you legal grounds to break the completely separate non compete agreement.

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I am very sorry that I don’t have better news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers based on my knowledge and experience, even when I know the answer doesn’t make the customer happy...

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thanks

Barrister

Customer: replied 10 months ago.
the fact that SunGard is no longer my employer, as it is now FIS..that has no effect on what I signed when I was offered employment by Sungard and not FIS? I wanted to work for SunGard but do not want to work for FIS.
Expert:  Barrister replied 10 months ago.

No, if the old company was bought out by the new one, then they would have assumed all legal liabilities and assets of the old company. The non-compete is an asset of the old company that is now owned by the new one much like inventory, customer lists, physical equipment, land, etc.

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So the new company just "steps into the shoes" of the old one and can enforce any contracts the same as the original company.

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thanks

Barrister

Customer: replied 10 months ago.
In short I was sold as an asset of my old company to the new company with zero financial gain to me and because the new company is cutting expenses the raise promised to me verbally in 2015 can be forgotten about and I simply need to take it. If they fire me is it safe to assume the non compete is equally enforceable?
Expert:  Barrister replied 10 months ago.

I hate to say it, but your assessment is pretty much accurate. In employer/employee relationships, in the absence of a union, the employer pretty much holds all the cards..

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And yes, it doesn't matter how your separation occurs from the company, the non compete is still enforceable.

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I am sorry that they news isn't better.

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thanks

Barrister

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