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Non compete restriction, changing employer in same area of…

Customer Question
Non compete restriction Lawyer's...

Non compete restriction

Lawyer's Assistant: Have you documented this or discussed it with HR?

Changing employer in same area of non compete

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Full time 90 days notice for no cause

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

30 days for a cause

Submitted: 8 months ago.Category: Employment Law
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Answered in 3 minutes by:
11/18/2017
Employment Lawyer: socrateaser, Lawyer replied 8 months ago
socrateaser
socrateaser, Lawyer
Category: Employment Law
Satisfied Customers: 40,074
Experience: Retired
Verified

Hello,

Non compete agreements are enforceable in some jurisdictions, not in others.

In which U.S. jurisdiction does the employee perform his/her work?

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Customer reply replied 8 months ago
i work in NY
Customer reply replied 8 months ago
i read online that non compete is void when compromise public interest
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

Give me a few minutes, because there are some very recent case law from NY that may impact my answer, so I need to review the law.

Thanks for using Justanswer!

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Customer reply replied 8 months ago
i am in healthcare and employed by hospital
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

Okay thanks.

Under NY law a noncompete is not enforceable if the employer (plaintiff) does not demonstrate “continued willingness to employ the party covenanting not to compete” Buchanan Capital Markets, LLC v.DeLucca, 144 A.D.3d 508, 41 N.Y.S.3d 229 [1st Dept. 2016], quoting Post v. Merrill Lynch, Pierce, Fenner & Smith, 48 N.Y.2d84, 89, 421 N.Y.S.2d 847, 397 N.E.2d 358 [1979].

From your facts, the public interest issue would be less important than the reason for your termination. This principle has been enforced against a physician in the case of: Goodman v. New York Oncology Hematology, PC, 101 A.D.3d 1524, 957 N.Y.S.2d 449 (3rd Dept. 2012).

Thus, the answer here depends on the reason for your termination, and whether or not the hospital is looking for an excuse to terminate you, vis-a-vis your having actually committed some wrongful act against the employer.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

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Customer reply replied 8 months ago
if termination for a cause then the non compete apply ?
termination for misconduct ?
what about if I resigned ?
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

if termination for a cause then the non compete apply ?

A: Yes, but only if the cause is valid -- which is a question of fact for a court to decide.

termination for misconduct ?

A: Same as above.

what about if I resigned ?

A: Again, what matters is whether or not: (1) your conduct is found to be wrongful by a court; and (2) the employer would have continued to employ you had you not resigned (e.g., "If you don't resign, then we will fire you.")

In sum, this is a really difficult question, because all of the facts matter, and sometimes what seems like facts outside of a court, can't be proved inside the court, due to evidentiary issues.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

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Customer reply replied 8 months ago
I work in shortage aarea of healthcare professionals and can I use that to void non compete to resign and move to the other employer
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

By itself, you can't use the issue of a shortage of health care professionals to void the noncompete (in my opinion) -- because courts have not used this criterion as exclusive grounds to avoid a noncompete.

However, in Michael I. Weintraub, M.D., P.C. v. Schwartz, 131 A.D.2d 663, 516 N.Y.S.2d 946 (2nd Dept. 1987), the Appellate Division held that a restriction prohibiting a neurologist from practicing within five miles of any hospital where he had worked on behalf of the corporation was unreasonable and unenforceable, but that the restriction prohibiting him from practicing within five miles of its offices was reasonable and enforceable.

So, the issue here comes down to whether or not you establish a practice within the radius of any hospital within the same general area, and if there is no other hospital, then the court could rule the noncompete unenforceable, because it would restrict you from practicing even if you located your practice beyond the radius described in the noncompete.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Thanks again for using Justanswer!

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Customer reply replied 8 months ago
the potential new employer is located 25 miles away and non compete is 40 miles radius
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

40 miles is a ridiculous radius. So that's a fact in your favor. But, to be clear, you're asking me to evaluate the facts and make a decision upon which you are about to base a decision concerning your future income (which I presume is pretty high). The correct way to approach this problem is to try to negotiate a settlement with the hospital, and if that fails, then you file a complaint for declaratory relief in court and ask the court to determine the validity of the noncompete.

Otherwise, you and I are just engaged in educated guessing -- because, your case facts are arguable. And, when facts are arguable, either side may win, if they put the question to a court.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Thanks again for using Justanswer!

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Customer reply replied 8 months ago
how much time it take for declaratory relief court decision ?
is that through local court ?
local court don t go aigainst hospitals
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

how much time it take for declaratory relief court decision ?

A: I can't answer this question, because every court has a different calendar, judges, etc. Moreover, I would have to practice in that court to know the answer for certain.

is that through local court ?

A: Yes.

local court don t go aigainst hospitals

A: Then your attorney can request a change of venue to a different court.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Thanks again for using Justanswer!

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Customer reply replied 8 months ago
is this commonly done ? do you read about success with declaration relief ?
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

No, it's not common, because most people don't worry about working for a new employer, because it's usually impossible for an old employer to discover that the employee is in violation of the noncompete. And, most employees cannot afford to test a question in court, so they just take their chances.

But, declaratory relief is the means to obtain a decision in your case. So, that's what you would need to do.

If you have further questions concerning this issue, please open a new Q&A session. I receive the rough equivalent of a Starbuck's mocha and a brownie to answer questions here (and that's only if you provide a positive rating). And, I've been working with you for nearly an hour. Please respect my time.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Thanks again for using Justanswer!

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Customer reply replied 8 months ago
how much does it cost to go through declaration relief ? how much processing time ?
Customer reply replied 8 months ago
Do you think that if i contact department of health they can over power and void the non compete
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

I can't tell you the cost. You'll have to contact a local attorney for a quote.

The health department has no jurisdiction over this matter. They cannot assist you.

Please provide a positve rating. Thankd for using Judtanswer.

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Customer reply replied 8 months ago
i had a complaint that included being abusive with female colleaugue and based on her perceptionhow to proove the opposite ?
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

Please provide a positive rating for this question and open a new Q&A session for your new questions.

Thanks for using Justanswer!

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Customer reply replied 8 months ago
how come not answering ?
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

how come not providing a positive rating and opening a new Q&A for your new questions, as requested?

Ask Your Own Employment Law Question
Customer reply replied 8 months ago
i didn t receive a new Q & A ,i didn t finish my questions to do rating
Employment Lawyer: socrateaser, Lawyer replied 8 months ago

You have exceeded the scope of your original question. Justanswer Q&A sessions are intended to answer a single question on a single subject. You are now asking about evidence issues related to employment discrimination/sex harassment. Your original question was about a noncompete contract provision.

You will have to open a new session, by asking an entirely new question separate from this Q&A session.

Please provide a positive rating for this question and open a new Q&A session for your new questions.

Thanks for using Justanswer!

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Employment Lawyer: socrateaser, Lawyer replied 8 months ago

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Thanks again for using Justanswer!

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