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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Employment Law
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Experience:  Former judicial law clerk, lawyer
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If I signed a non-compete and the employer terminated my

Customer Question

If I signed a non-compete and the employer terminated my employment does that make the non-compete agreement void. In the State of Georgia.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Lucy, Esq. replied 1 year ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today.

Unless the contract specifically says so, a non-compete is not automatically invalidated when an employee is terminated by the employer. However, note that if you were asked to sign a non-compete at the time of termination, or immediately before, that wouldn't be valid. Depending on the circumstances surrounding the termination, it may be possible to argue that your employer determined that your work had no value and, as a result, they are not injured by the mere fact of working for someone else. That is risky, though, because you can only raise that argument when you're sued. A new employer will sometimes buy out a non-compete as part of a signing bonus, so that might be something else worth looking into.

With that said, the Georgia legislature changed the non-compete agreement statute in 2011, so if you signed it before that, the agreement may not be valid. Code of Georgia, Section 13-8-53. The non-compete will not be valid if you don't perform one of the following job functions:

(1) Customarily and regularly solicit for the employer customers or prospective customers;

(2) Customarily and regularly engage in making sales or obtaining orders or contracts for products or services to be performed by others;

(3) Perform the following duties:

  • (A) Have a primary duty of managing the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
  • (B) Customarily and regularly direct the work of two or more other employees; and
  • (C) Have the authority to hire or fire other employees or have particular weight given to suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees; or

(4) Perform the duties of a key employee or of a professional.

You could still be prohibited from soliciting customers you did business with at the original employer, but not from working at all. Any non-compete that doesn't fit with what I've described is void and unenforceable.

An employer must give the employee something of value at the time of asking him to sign a non-compete. It's OK if the non-compete comes with an offer of employment, but if it's given later, it should come with something that benefits you - like a pay increase, more vacation time, or better benefits.

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