How to get out of a non-compete?

My employer lost to a bidder in government contract which they have for 8 years. The winner hired me to do the same job with a much better benefit. Now, my old employer is threatening me with non-compete agreement which I don’t even remember signing. Since the contract is completely lost and my previous employer is engaged in totally different work, I am of the opinion that there is no competition between the 2 organizations and so the non-compete agreement should not be applied.

Asked on July 4, 2012 under Employment Labor Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If you believe the non-competition agreement does not apply, you have two options:

1) Work for the alleged competitor and see if your former employer sues you based on the non-competition. To do so, they will first have to prove the existence and terms of the agreement--which may be difficult, if they, like you, can't produce a copy of it. Second, even if they can prove the agreement exists, they would have to show that it applies to this situation--i.e. that the new employer competes with them--and you could provide your evidence to the contrary to prevent them from making this showing.

2) You could try pre-emptively suing the former employer seeking a declaratory judgment (court determination) that there is no agreement and/or if there  is one, it does not apply. Similar factual issues as above would apply. This costs you money but doesn't leave you waiting to see if the former employer takes action against you.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.