Q: How to waive my non compete included in the CNDA?
I am an engineer living in California and working remotely for a company in Texas. I got laid off and I wonder if my non-compete clause included in the signed CNDA can be enforced. The non-compete is for 1 year and the CNDA mentions the State of Texas as the governing law.
I have asked for the non-compete clause to be waived but not heard back from my ex-company yet.
Thanks for your opinion.
A:
It would be unwise for an attorney to opine about a contract without being able to see the entire contract and understanding the circumstances regarding its making. However a few general things can be said preliminary to that.
First, generally non-compete provisions are unenforceable in California courts, except for some very narrow circumstances. Business and Professions Code section 16600 renders unenforceable any attempt by an employer to restrain an former employee's trade.
Second, California is unique in this protection. Almost all other jurisdictions will enforce non-complete provisions that are narrowly tailored to protect the employer's interests.
Third, a choice of law provision in a contract will generally be enforced unless there is some special circumstance or express law that would make enforcement of that provision unlawful or unconscionable. If the enforceability of the non-compete was adjudicated in a California court related to your conduct in California only, then you may well be able to avoid the choice of law provision, but if the same issue is adjudicated in a Texas court, it would likely be given full effect.
Fourth, if the choice of law provision is enforceable, you will need to get a Texas attorney to give you advice on this.
At this point, it would be wise to get a specific, confidential consultation.
Good luck to you.
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