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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 117370
Experience:  20+ Years of Employment Law Experience
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PLEASE ONLY ATTORNEYS WITH NEW YORK LABOR LAW EXPERIENCE RESPOND]I am currently working for a hedge-fund in New York city. I have a non-compete agreement with my current employer.There is a 6 month restricted period after my termination in which I should not be working for other companies in similar field. This period would be “un-paid” if:I am terminated “with a cause”, i.e. fired.
I resign “without a Good Reason”
Resigning with Good Reason means that the company does not give me my base salary or reduces my responsibilities, etc.Can the company enforce the noncompete agreement in NYC without paying my base salary?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
I have to handle these non-compete issues regularly for NY employers. The NY Courts can enforce a non-compete provision, even when an employee has been terminated with good cause (or even without good cause) by the employer. An exception to this may exist where an employer violates the contractual agreement causing it to then become void based on that breach. If the employer has breached the contract such that the employee quits by declaring the contract void, then that would include voiding the non-compete clause in the agreement if the non-compete was not a separate stand alone agreement signed.
In order to argue this exception, you must show that your contract contained specific provisions for payment of salary and no provisions to allow the employer to change the payments owed to you. Without such specific pay provisions in the contracts, the NY courts will hold that the non-compete would remain valid despite the non-payment of salary and commissions (which the court considers a separate issue from the non-compete) See: Leibowitz v. Aternity, Inc., 2010 U.S. Dist. LEXIS 70844 (E.D.N.Y. July 14, 2010).