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I was recently downsized from my company and one of the customers

contacted me to do work.....
I was recently downsized from my company and one of the customers contacted me to do work... I signed a non-compete but the customer does not have a signed agreement or is a current customer they were a customer over two years ago... I can attach the non compete verbiage if needed...
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Answered in 1 hour by:
7/13/2013
John
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5,791
Experience: Exclusively practice labor and employment law.
Verified
Hi, thanks for submitting your question tonight. A non-compete agreement will only be enforced against a former employee if the agreement meets all three prongs of the test reasonableness of the agreement. To be enforceable an employer must show reasonableness, in that (1) it has a legitimate business interest sufficient to justify enforcement of the non-compete clause; (2) that the clause does not cause the former employee undue hardship; and (3) that enforcement of the clause will not be harmful to the public.


I would need more information about your specific non-compete agreement; please attach the specific language of your agreement.
John
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5,791
Experience: Exclusively practice labor and employment law.
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Customer reply replied 4 years ago


I have a pdf and when I try to upload the file the site give me an error... Is there an email address that I can send the doc to....

Customer reply replied 4 years ago

here is the wording of the non compete.....


 


I also agree for a period of twelve (24) months following my employment, to not solicit clients with whom I did business on Extensys inc’s behalf, this includes clients that I gained knowledge of indirectly through my association with Extensys, Inc., in addition I agree not to work directly or indirectly, as employee or otherwise, under any circumstance for any Extensys, Inc. clients for a period of 24 months following my termination of employment with Extensys, Inc. I aso agree that any client that I refer to Extensys, Inc. regardless of my prior relationship with such clients become the cliens of Extensys, Inc and as such are subject to the same terms….

Customer reply replied 4 years ago


they have some typos where it states the month and then they put the number 24... Also there is no geographic limitations stated, so are they stating the entire world...


 


The customer that contacted me has not done work with my former employeer in over three years and does not intend to do any work with them due to their cost....

Courts consider several factors when determining whether a non-compete agreement is reasonable, including: (i) how long the restriction lasts and the geographic area that the restriction covers (generally no more than 2 years and reasonable local area will be reasonable), (ii) whether the employee was the sole contact with customers, (iii) whether the employee possesses confidential information or trade secrets, (iv) whether the covenant operates to bar the employee's sole means of support, (v) whether the covenant seeks to stifle the inherent skill and experience of the employee, (vi) the likelihood that the employee can find other employment if the restriction is enforced and (vii) whether the benefit to the employer is disproportional to the detriment of the employee.

The actual terminology used by Florida law and courts is "Substantial relationships with specific prospective or existing customers, patients, or clients" What this means is that employer cannot justify having such an agreement without identifying to you or the court what exact or prospective business it hopes to protect from competition. If you could argue that this former customer is so out of possible contention for this employer so that it couldn't even has a reasonable expectation of getting their business, this would support a ruling in your favor.

See these cases:

Univ. of Florida, Bd. of Trustees v. Sanal

Plaintiff cannot establish "legitimate business interest," because it failed to establish either that Dr. Sanal had interfered with "[s]ubstantial relationships with specific prospective ... patients"

Shields v. Paving Stone Co., Inc.

Because Paving Stone did not have exclusive relationships with any of its customers and information on customers was readily obtainable through the yellow pages and trade subscriptions, the nonsolicitation/nondisclosure agreement was not reasonable to protect Paving Stone's customer base.

 

Anich Industries, Inc. v. Raney

No legitimate business interest to support non-compete agreement There was little evidence of any exclusive or other kind of relationship that could be construed as "substantial" within the meaning of the statute. Alternatively, under Raney's interpretation, it is obvious that in less than three months with Anich she did not have the opportunity to develop a "substantial relationship" with any of her customers.



The underlined factors above support that the agreement not be enforceable against you. Likewise, the employer's "relationship" with the prior client is very tenuous for them to claim a substantial client relationship. However, unless you are willing to take the matter to court to have the contract ruled invalid, you'll not truly know if they can enforce its agreement. In short, only a court can definitively tell you whether the non-compete is enforceable, but these are the factors that would be considered by a court, and you'd have I believe a good chance to have the non-compete ruled unenforceable.

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