Q: Hi, I have a no compete w/ a severance clause included. How hard/costly would be to get this voided so I can work ?
The parent company recently bought a similar company to the one I work for now and they are taking over all areas and top mgmt is being filled with their people. Many people are being fired. No communication is being shared as to how the team is being selected. It is supposed to be a merger but a take over is what is happening. Top mgmt is now all male. I am female, 54years old and an EVP. This field is very competitive. The parent company bought 2 out of 3 in the field. If I would find a job in this market, it'd be w/ the company that is still out here in NY doing the same kind of business. Travel management therefore under this market, we are in a very hard market. I am willing to give up my 2 y severance for the opportunity to work and earn my living. If I come back in 2 years to the market, my skills and knowledge will be too outdated and I will be too old to compete for a position should an opportunity arise. If I go into litigation, no one will take me,
Thank you,
A:
Your question deals with employee choice doctrine. If you accept money then you are bound by the non-compete terms no matter how severe or possibly illegal.
If you choose not to accept the severance pay and are being fired through no fault of your own then the non-compete itself might be unenforceable. That's a "might" be unenforceable and not a certainty. New York will not forbid employees, in most cases, from earning a living. However, if everything you know learned in your trade you learned from one employer. And everything that employer introduced you to or taught you was confidential or a trade secret then you may not be able to use it. But that would be in somewhat rare circumstances. It really depends on how specialized or unique or special you actually are. Some employees are more special or unique than they think they are and others not so much.
Will what you do unfairly affect your employer because of resources they invested in you? If your non-compete was for 2 years and they offered you a 2-year severance that might not be unreasonable but if you don't accept it maybe you can still work with another employer? Of course you can never share confidential information or trade secrets without prior authorization.
The analysis above is way more complicated than I can write in a couple paragraphs. Watch some videos at Employment Law Reality Check on YouTube or on this website itself. I believe several discuss non-compete or trade secrets covenants.
I think many employment lawyers routinely review non-competes for flat fees and that includes an analysis of how to handle your situation. Depending on the wording of your non-compete and exactly what you do you should have an employment lawyer review your document for the flat rate after discussing your particular circumstances as well. Make sure your non-compete has language that it is governed by New York Law and remember that if your employer chose another state's law whose public policy is repulsive or repugnant to New York's then that state's law might not be applied in New York. Unfortunately, the analysis is more complicated than this post can address in full.
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