What to do if a benefit mentioned in an”independent consideration” clause of non-compete agreement was slightly modified later on.

One of the benefits mentioned in the “independent consideration” clause of non-compete agreement was provided by employer exactly as mentioned in the agreement in the first year. About a year later and since then it was modified by employer and not provided exactly as mentioned in the agreement. Does this void the agreement ? Also, agreement is governed by another state. Is it enforceable?

Asked on October 26, 2011 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

A change in the benefit does not necessarily terminate the agreement or entitle you to disregard its terms; it depends on what the change was. For example: say part of the consideration was fully paid for health insurance, which at the time had a value of $1,000 per month. Say that the cost of health insurance has increased (which it has), so that it now costs $1,300 per month to provide the insurance. If you are still receiving $1,000 per month subsidy for it (only paying the increase yourself), a good case could be made that you are still getting the consideration ($1,000/month towards health) you agreed to. Similarly, minor changes in retirement or bonus plans, or in the mix of vacation and sick days (e.g. going from separate vacation and sick days to a flexible time


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