Is the non compete section in an employee/employer contact enforceable for an IC

I was hired at a dog groomer salon thinking I was an employee. After a couple of weeks I and the others were told the owner we are independent contactors. Then a month later he had us sign an employee/employer contract that include a section for non compete. The contract has employee/employer mentioned throughout the whole document but not one word of independent contractor. The owner never withheld any taxes from day one and I was given a 1099-misc. As an independent contractor can he enforce the non compete section even if the document states that it is between the employee and employer?

Asked on March 2, 2016 under Employment Labor Law, New Mexico


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Yes, the employer can enforce the non-compete clause against you, because whether you are, for wage or tax purposes, an "employee" or an "independent contractor" you are *employed* by this employer. The intention of the clause is clearly to prevent competition by the people whom the employer employs; given that clear purpose, a court will not invalidate the agreement because of a technical distinction, relevant for other purposes (e.g. overtime; taxes) but not for non-competition agreements (since they can bind independent contractors as well as employees).

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