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this is regarding an employment contract which includes a non…

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this is regarding an employment...
this is regarding an employment contract which includes a non compete clause. The was given 3 months after employment and i was told this is a condition of employment. i signed it. it i were to go work for the competition would the time frame in which it was given give me any leeway in the event the agreement is enforced?
Submitted: 8 years ago.Category: Employment Law
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Answered in 1 minute by:
6/18/2010
Employment Lawyer: Marsha411JD, Lawyer replied 8 years ago
Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,984
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
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Hello,

In order to answer your question, I need to know what state you work in.
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Customer reply replied 8 years ago
Virginia
Employment Lawyer: Marsha411JD, Lawyer replied 8 years ago
Hello,

Unfortunately there is no clear answer to your question in Virginia. The issue is whether the continued employment of the employee in exchange for the signing of the non-compete is considered sufficient "consideration" required to have a contract. There have been opposing results in court cases in your state. For example, in 1989, the Virginia Supreme Court (in Paramount Termite Control v. Rector , 238 Va. 171) found continued employment did constitute sufficient consideration to uphold a noncompete agreement signed after employment began. However, one year later a Circuit Court from the City of Richmond held (in Johnson v. E. R. Carpenter ,XXXXX 380) that the employee's future at-will employment did not constitute consideration for the employee's execution of a noncompete agreement. A more recent court case in Texas, which does not control but is also an employment at will state, held the same as the later court did in Virginia. That is that signing a non-compete in the middle of your employment without some additional consideration other than continued employment is not consideration.

I do note that you say that you had an employment contract. If it was firm as to term length and had language that it could only be terminated for "cause," then the non-compete would not likely be enforceable since you already had a contract that could not be terminated for your failure to sign, so there definitely wouldn't be sufficient consideration in that case.
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Customer reply replied 8 years ago
the agreement doesn't have a time length, it will only be terminated if i were terminated. I just feel that i should have been given the agreement on the first day if not before to decide whether or not i wanted to sign as oppose to 3 months in. So i now have an offer at a competing company and i guess just want to know if it were enforced would the fact that it wasn't given with the rest of the new hire paperwork have any impact?
Employment Lawyer: Marsha411JD, Lawyer replied 8 years ago
I'm sorry if I didn't make myself clear, the courts are split in Virginia, so I can't tell you what the outcome would be. That is why I provided the case cites and decisions. The fact that apparently have some sort of written contract may be in your favor but it really depends on the specific language of the contract and your non-compete. If I were you, I would take your contract and your non-compete to a local employment law attorney who can actually read both of them and also interview you about all the specifics of when your contract was executed and when your non-compete was signed. That way they will be in a better position to tell you what your legal options are. He or she may be able to find an obvious out that is not related to the timing of when you received the non-compete.

If you go to work for this competitor and your non-compete is good, then both you and the competitor could be sued for damages. If your non-compete is unenforceable, then the court would find in your favor. Again though, no clear answer in Virginia about whether mid-employment non-competes are enforceable.
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