Can an employee’s non-complete be upheld if they have been laid off?

My husband signed a non-compete and received a $500 bonus for doing so. The non-compete was for 2 years and it has been just over 1 year since he was laid off. He has just received a job offer with a company that would be considered competition. He has not had a job since his lay off so I was wondering if this would be upheld or if we could fight the non-compete.

Asked on September 8, 2011 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

First thing to do is to read the non-compete and see exactly what it says. The odds are that he it will not apply in the event he was terminated or laid off, since most non-competes only apply when the employee voluntarily leaves, but you need to check the language, since a non-compete is a contract, and the terms of a contract control.

Second, even if it ostensibly would apply, it may not because 2 years is unusually long for anyone but a very senior executive or company founder to be bound. Courts will cut back or reduce non-competes that are too long or too broad (in terms of jobs or area covered) and which prevent someone from earning a living.

You should consult with an employment attorney, who can review the non-compete with you. It may be that for one reason or another, it is not enforceable at this time.


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