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Ely
Ely, Counselor at Law
Category: Employment Law
Satisfied Customers: 102504
Experience:  Years of experience in running a medium sized law firm.
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I was recently off due to slow sales in South Carolina after

Customer Question

Hello! I was recently laid off due to slow sales in South Carolina after only being employed for 4.5 months. I was recruited 3 times over an 18 month period before they convinced me to join. I signed a non-compete when hired. There is a separation document they want me to sign (for 1 weeks of severance pay) that says the open-ended non-compete will stay in place. That will limit my employment options, and do not want to sign this document. I will not take a job that focuses on their market (EDU), but need to remain in my field (technology sales). What are my options? Thanks in advance for your assistance.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Can you please clarify something? You state that you signed a non-compete when hired. If so, and ifyou were only employed for 4.5 months, then why do they want you to sign another non-compete to "affirm" the original? I imagine that the original non-compete extends past the 4.5 months. Or, is the original non-compete voided by you leaving so early? Please clarify.

Customer: replied 1 year ago.
I the employee handbook, it says 12 months after termination and is location based. I was inside sales, and I only helped support the outside sales reps out of the Greenville, SC office. I have none of their customer info and zero desire to work with any reseller in the EDU market again.*** The HR manager told me a few weeks ago they did NOT have a copy of my signed employment contract, and asked that I send her a copy. I never did. I already have a letter of recommendation from the owner. ***Handbook:"Employee agrees that, in addition to any other limitation, for a period of twelve (12) months after the termination of his or her
employment under this Agreement, Employee will not directly or indirectly engage in, or in any other manner be
connected with or employed by any person, firm, or corporation, or other entity in competition with Employer or engaged in providing competitive computer software support or program design services within the Territory served by employer.For purposes of this provision Territory shall be defined as the following counties in South Carolina, all of which Employer currently conducts business, which shall include Oconee, Pickens, Laurens, Greenville, Anderson and Spartanburg Counties, or any other county in which Employee has worked in the last twelve (12) months."
Customer: replied 1 year ago.
I the employee handbook, it says 12 months after termination and is location based. I was inside sales, and I only helped support the outside sales reps out of the Greenville, SC office. I have none of their customer info and zero desire to work with any reseller in the EDU market again.*** The HR manager told me a few weeks ago they did NOT have a copy of my signed employment contract, and asked that I send her a copy. I never did. I already have a letter of recommendation from the owner. ***Handbook:"Employee agrees that, in addition to any other limitation, for a period of twelve (12) months after the termination of his or her employment under this Agreement, Employee will not directly or indirectly engage in, or in any other manner be
connected with or employed by any person, firm, or corporation, or other entity in competition with Employer or engaged in providing competitive computer software support or program design services within the Territory served by employer.For purposes of this provision Territory shall be defined as the following counties in South Carolina, all of which Employer currently conducts business, which shall include Oconee, Pickens, Laurens, Greenville, Anderson and Spartanburg Counties, or any other county in which Employee has worked in the last twelve (12) months."
Expert:  Ely replied 1 year ago.

Thank you.

Okay, this got complicated fast. Please tell me:

1) Do you wish to acknowledge that you signed the original non-compete, or not? How long was it for (also 12 months?)?

2) Is the handbook signed by you, or, does anything you sign mention the handbook as a binding document?

Customer: replied 1 year ago.
1. They are not asking for a copy now, and I don't feel compelled to help them in that regard. It was 12 months after employment ends.2. I sent the only the last signed page of the handbook signed via email, which they seemed to not have. But it was acknowledged (with no detail) in the offer letter that I signed:"You will also be required to sign and agree to our procedures as outlined in our Employee Handbook, as well as sign a Non-Compete and Non-Disclosure document."
Expert:  Ely replied 1 year ago.

Okay. So do you wish to take the position that you NEVER SIGNED the original non-compete? Or, you wish to acknowledged it? Because my answer would differ on your position.

Customer: replied 1 year ago.
I will acknowledge it.
Expert:  Ely replied 1 year ago.

Thank you.

If you acknowledge it, then you are bound by 12 months as the contract stated, even if they do not have a copy of it. The reason why they are asking you to "resign" is because they do not have a copy, and, an employee handbook non-compete mention may not be binding upon itself if it is not specifically signed.

Now, even if the non-compete is signed, then it may or may not be binding depending on how reasonable it is. See HERE. There are two ways to find out if it is reasonable:

1) Simply engage in the work. The risk is that the old company will sue for the breach under the non-compete, in which case one may argue that the non-compete was not reasonable and let the court decide; or

2) File for a declaratory judgment prior to engaging in this work . This is a type of case where one asks the Court to clarify the rights/duties of parties under the law for a contract. The positive is that this has one be the Plaintiff, so there is less risk of being seen liable as no work has yet been performed. The con is that if one loses and the court upholds the non-compete, one may be liable for the old company's legal fees.

REGARDLESS,

You do not have to sign the document. However, they also do not have to pay you the severance pay. But if you already acknowledge that you signed the original non-compete, then this may not matter if the non-compete they are putting in front of you mirrors that of the original.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.