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I'm needing an employment lawyer of Texas employment and

I'm needing an employment lawyer...
I'm needing an employment lawyer of Texas employment and non-compete law whom I can furnish documents and get a legal opinion this morning regarding enforceability of non-compete. I do know that it looks to be NOT ancillary, as it was simply bundled with an at-will employment agreement, and is extremely broad and ambiguous in geographical coverage.
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8/18/2017
Infolawyer
Infolawyer, Lawyer
Category: Employment Law
Satisfied Customers: 58,107
Experience: Licensed attorney helping employers and employees.
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Customer reply replied 3 months ago
I'm needing to get a definite legal answer based on having all of my agreements, past and present, reviewed for validity of both a non-compete and confidentiality agreement. Though I'm confident at a macro level, I do not know enough to discern the detailed terminology of the added agreements from my present employment.Here are the overall facts, to the best of my knowledge:(1) I was a 1099 contractor for Company for 5+ years without requirement of confidentiality or non-compete agreements, and offered same services to other companies. During this time, I became acquainted with Company's technologies and methods, and was able to utilize the non-confidential non-patented and public domain elements in Person's business to develop Person's technology.(2) I was in need of changing work arrangement FROM 1099 and TO salaried employment in order to buy a home, as loan was about to fall through. Person was then required to sign a non-compete and confidentiality agreement in order to make the switch. Though not agreeing with it after asking about it, I had signed it in order to make the home purchase possible.(4) Since immediately before and after the signing of the agreements, (a) I was never inquired nor asked to cease working self-employed with my own company offering same services though Company was fully aware of Person's business with similar services, and (b) No new technology or methodology was disclosed by Company to me since signing the Non-compete and Confidentiality agreements, as all work as an employee was done based on prior knowledge and public domain technology.(5) The company did not pay additional for the non-compete agreement, but rather bundled it into a large set of employment documents, as the Company had reduced the my annual compensation to adjust DOWN for pretax and vacation and holiday pay in order to stay at or below the previous 1099 yearly pay, so that there was definitely NO additional money given to go with the signing of the non-compete.I have documentation including prior 1099 contract and present employment agreement with entire set of other agreements as non-compete, confidentiality, and others, as well as documentation surrounding the change from 1099 to W2 direct. Based on ***** *****'s statement at http://www.brownemploymentlaw.com/Practice-Areas/Non-Compete-Agreements.shtml , I have been suggested that my situation looks to be a NON-ancillary non-compete, but I have not had my actual documents reviewed.Attached are the following:
(1) Verification of employment showing 1099 contract to W2 employment, with annual compensation reduction
(2) Original, signed 1099 independent contractor agreement superseding all agreements 2009-2015, during which time no confidentiality or non-compete agreements existed
(3) Email evidence that my need to transition from 1099 contractor to W2 employment was due to an immediate last-minute requirement to do so to obtain home financing on a loan which was about to fall-through
(4) Employment contracts signed November 2015, including invention and non-compete agreements as bundle provided and required to sign to be employed

That is a lot of material, give me some time to review.

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The non compete is overbroad. 3 years and no geographical limit wont be enforced.

Confidentiality is standard and would be enforced as to any proprietary information/trade secrets.

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Customer reply replied 3 months ago
I have evidence of prior knowledge of non-patented and public domain technology which I was free to use as a 1099 contractor with other companies before I stopped due to signing the agreements, and as long as I have proof I was advised this would be something which the company has no claim to. Do you agree that this is true?

I do, that would not be considered information subject to protection. You are free to work and compete, especially as a non employee contractor.

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Good luck.

Kindly let me know if the reply is fast and acceptable.

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Customer reply replied 3 months ago
I will wait for your review after you've been able to go through it all. Thanks so much. My specific questions in need of your legal opinion are these:(1) From your experience, is that uncompensated non-compete agreement void due to being given only ancillary to an at-will employment, that Texas does not support this type of combination?(2) Since the geographic coverage is too broad, is it legal fact that the entire non-compete would be completely void and it results in conditions being as if there is no non-compete, or is part of the non-compete enforceable?(3) My ultimate inquiry, is that I was freely doing business and offering competitive services prior to the 11/2015 invention/non-compete signing and am needing to get legal opinion in regards ***** ***** ability to work on my prior conceived technology which would potentially be used by competitors, but would all be based on my prior invention from January 2014 - May 2015.
On review,
1. Yes
2. Yes.
3. Indeed you may continue.Company has no basis to limit your future and ongoing work.please let me know if that is acceptable by replying "Yes" or "acceptable".
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Customer reply replied 3 months ago
I will just need you to provide the list of the active current laws and ordinances that your opinion is based on, as I need to keep this all complete and compiled in my records, and that is exactly what I needed. If you can furnish this list, I'll close this with highest rating and bonus.

My response is based on review of the agreement and how courts handle such ovebroad non competes. This is not statutory as there is no statute on point, and courts decide this on a case by case basis, but here where the language is so overbroad and you are not even an employee, it is not even a close call.

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Good luck and have a wonderful weekend.

Kindly confirm the reply is acceptable.

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Customer reply replied 3 months ago
you're saying that because it's definitely in terms of "at-will" employment, that I'm actually not an employee where the non-compete would have been enforceable IF it wasn't "at-will"?

If you were an employee, it would not be enforced. As a contractor, it also will not be enforced and even more so. The term of the non compete is simply overbroad by any stretch.

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Is that clearer and acceptable?

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Customer reply replied 3 months ago
I'm just not clear on the legal difference in my arrangement (do you conclude that the agreement is "at-will" employment?) and a true legal employment contract. Being that the non-compete would not be enforceable for an employee or contractor, are you saying that my legal agreement was neither legally binding as "employment" nor subject to a non-compete agreement?
Not enforceable no matter your treatment as a 1099 or employee
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I view it as a 1099 arrangement but has no impact on your being free!
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please let me know if that is acceptable by replying "Yes" or "acceptable".
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Customer reply replied 3 months ago
It was changed to a W-2 arrangement with the signing of the non-compete and Invention agreements. Please explain how you justify considering it a 1099 despite the W2 at-will arrangement?
Customer reply replied 3 months ago
Your assessment is a new approach that I haven't heard before, and I would appreciate clarification as to how you conclude the arrangement as still being 1099? Thank you

For the purpose of the non compete, it makes no difference. If company had control over when/how you did your job, you would be more of an employee than a contractor. The non compete either way is NOT enforceable.

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are my replies now acceptable?

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Customer reply replied 3 months ago
They're very vague. As you can see, the contractor 1099 agreement had no confidentiality provisions. In order to change the 1099 arrangement to a W2 direct arrangement, I was required to sign the non-compete in a bundle of documents that sound like an "at-will" employment agreement. I reached out on Just Answer to get the specific answers to the following:(1) The employment arrangement is, in fact, legally an "at-will" agreement
(2) That it is, in fact, legally unanimous and consistent Texas law ruling that a non-compete is invalid if paired with (ancillary to) only an "at-will" agreement with no compensation paid additional for it
(3) You answered this - that the geographic terms of the non-compete are too broad
(4) Which parts of the non-compete are enforceable, if any, or is the entire non-compete void due to both the geographical broadness and as being ancillary to an "at-will" agreement?
(5) The fact that I was being forced to sign the non-compete and confidentiality agreements in order to be W2 direct, with the employer knowing that I needed the change to close on a home purchase, what does this add to the validity of the non-compete and confidentiality terms which were not enforced in all prior years by any agreement?

1. It is.

2. Non competes are evaluated on a case by case basis. 3 years and no geographical limit render it overbroad. Courts are more likely to enforce where limited to 12 months and a short radius.

3. entirely unenforceable.

4. entirely unenforceable.

5. That does not affect enforceability since otherwise non enforceable. Assuming the terms were limited as noted in answer 2, having you sign as a condition of employment is legal.

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Is that now clearer and acceptable?

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Customer reply replied 3 months ago
thanks for your help

very welcome.

Kindly rate me 5 stars.

Enjoy your weekend.

Infolawyer
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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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