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I'm looking to get some information around a non-compete and…

Hello! I'm looking to...

Hello! I'm looking to get some information around a non-compete and if it would be enforceable in the future

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

No it is a new offer letter that i am reviewing

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

At will

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

The name of the company listed in the offer letter that th ee non-compete is against is not the legal name of the company *that the thank you!

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3/9/2018
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,165
Experience: Licensed Texas General Practice Attorney
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Thank you for using JustAnswer.

Can you tell me what state this is in?

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Customer reply replied 5 months ago
Illinois

Thank you for that additional information. Please give me a few minutes while I type a response. I am still here with you, but it does take a bit of time to type a complete response.

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Non-compete agreements in Illinois are enforceable. However, they must be drafted narrowly, as failure to do so may render a non-compete unenforceable. Non-competes must essentially be reasonable as to scope, duration, and geographic range of the activity to be restricted.

However, if you have a binding non-compete, it is typically enforceable. While it may potentially be held unenforceable upon wrongful termination , that would not be the case if the termination is the employee's fault, meaning that an employee who gets himself fired would still typically be subject to a valid non-compete.

If a non-compete is valid, there's no way to unilaterally cancel the contract. However, your attorney may be able to negotiate with the employer to release you from the contract, assuming the contract is valid and enforceable.

More about Illinois non-compete agreements:
http://www.madufflaw.com/noncompete/

Non-competes have to be reasonable in terms of scope, geographic limitation and duration. If there's no geographic limitation at all, nor duration, then it would be assumed to be worldwide and perpetual. A court may choose to "blue pencil" (modify) an over-broad non-compete, but Illinois courts are increasingly unlikely to blue-pencil or modify overbroad non-compete agreements. That decision, Cambridge Engineering, Inc. v. Mercury Partners 90 BI, suggested that patently overbroad non-compete agreements cannot be reformed on the grounds that reformation would violate a fundamental public policy in Illinois.

So it's entirely possible that it will be enforced. Note that Non-compete litigation is very expensive, and companies make decisions to pursue these cases based on economic factors. It's unlikely that this clause would actually stand, particularly if you were not a high level executive. It would be most likely determined to be a restraint in trade. And in that regard, even if they were to be successful, they would be out $15,000 or more on litigation costs.

Again, they're going to make this determination based upon economics. If you were a high level executive and it was reasonable that you leaving and working for someone else would have a direct impact on the bot***** *****ne, greater than the costs of litigation times and taking into account the risk of loss, then it might be feasible that they would go after you. But given your position, and the likelihood that a court would reform the agreement (and thus remove any fees that would have to be paid, etc...) it's unlikely that the company will actually try to enforce it.

Most of the time these agreements are signed with the bluff in mind. That is, the company doesn't expect to enforce it, but can tell the employee that you can't compete while waving the form in the air. I've really only seen high level executives sued for enforcement, because of the potential impact to the bot***** *****ne. Of course your employer could be more vindictive than most, and sue when it really doesn't make any economic sense to do so. But that's almost never the case.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,165
Experience: Licensed Texas General Practice Attorney
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ScottyMacEsq and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 5 months ago
Thank you! That is super helpful! Have a great day.

You're welcome, and again, good luck to you!

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