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I was wondering if it is legal for a company to put a non…

I was wondering if...

I was wondering if it is legal for a company to put a non compete contract together for a 1099 employee?

Lawyer's Assistant: Was the non-compete agreement discussed with a manager or HR? Or with a lawyer?

Manager

Lawyer's Assistant: Is the workplace "at will" or union? Is the job hourly or salaried?

At will and it is 100% commission based

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

Yes, the employer is trying to take legal actions because i went to a competitor.

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Answered in 1 minute by:
3/28/2018
Ely
Ely, Counselor at Law
Category: Employment Law
Satisfied Customers: 103,491
Experience: Years of experience in running a medium sized law firm.
Verified

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. There is no specific course of action is proposed and no attorney-client relationship or privilege formed within this conversation. (You may also be offered a phone call, but those don’t come from me and are offered by the website and you are under no obligation to accept.)

Yes, it is. An employee or a contractor can be bound by a non-compete. However, non-competes have limitations. If you tell me what state this is in, I can tell you if the non-compete can even be enforced, or to what limit.

"I STRIVE FOR FIVE!" My goal is to answer your question to your satisfaction. Please rate with five stars (★★★★★) and click SEND. It does not cost anything extra to rate. You may need to scroll left/right/up/down to see these stars. Rating my answer the bottom two stars or failing to submit the rating reflects poorly on me, even if my answer is correct. If you are not satisfied for whatever reason, or, have follow up questions, please simply reply with SEND before or after rating and let's continue to chat until you are satisfied. This is what I am here for.

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Customer reply replied 27 days ago
Ohio. I sell jewlery online through facebook. I left the old company and i signed a non compete but was treated poorly so i resigned and went to another competitor and im still a 1099 employee.
Customer reply replied 27 days ago
I reside in Massachusetts and work through facebook to sell products that the company orders online from china

Okay. Mass' law about ncais is currently in flux, but here is the latest: NCAs in Mass are enforceable provided that they are necessary to protect a legitimate business interest, reasonably limited in time and space (normally set at no more than 2 years anf 50/100 mi out), and consonant with the public interest.

See more HERE.

One has really three ways to figure out what one's options are.

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 can use the affirmative defenses explained above (i.e. arguing that the NCA is not reasonable). There is a possibility the old company will not even know or care, but, this is a risk.

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. OR

3) The final option is negotiation, where one asks the old company to simply lift the non-compete.

Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved rudeness or wrong information. Please be kind!

"I STRIVE FOR FIVE!" My goal is to answer your question to your satisfaction. Please rate with five stars (★★★★★) and click SEND. It does not cost anything extra to rate. You may need to scroll left/right/up/down to see these stars. Rating my answer the bottom two stars or failing to submit the rating reflects poorly on me, even if my answer is correct. If you are not satisfied for whatever reason, or, have follow up questions, please simply reply with SEND before or after rating and let's continue to chat until you are satisfied. This is what I am here for.

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Customer reply replied 27 days ago
Well the company is based out of Ohio. I live in Massachusetts and work from home. All business is conducted through facebook. Even though i signed a non compete, at the end of the day I am a 1099 employee

It does not matter if you are an employee or 1099 contractor - NCAs apply the same to both.

NCAs in Ohio are much as in Mass - they have to be reasonable. See HERE. If your non-compete says that the jurisdiction for any NCA dispute/action is in OHIO, my answer applies as is, except it would have to be filed in Ohio.

Kind Reminder: Please, use SEND button to keep chatting, or please rate positively and click SEND to submit your rating once satisfied. You may always ask follow ups at no charge before or after rating. "I STRIVE FOR FIVE!"

Ely
Ely, Counselor at Law
Category: Employment Law
Satisfied Customers: 103,491
Experience: Years of experience in running a medium sized law firm.
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Ely
Ely
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Category: Employment Law
Satisfied Customers: 103,491
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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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