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


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.

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