When is a non-compete unenforceable?

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When is a non-compete unenforceable?

I have a non-compete agreement with a doctor that I work for that states “…or a period of 2 years after leaving…employment, I cannot directly compete in his geographic area of business”. I have an offer to manage locally at an optical department of a retailer. The doctor has patients from an area of about 45 miles or more across 2 states. Since this will effectively deny me employment opportunity anywhere close to home, and as he does not state an defined area (as in “10 miles of my business”), is this enforceable?

Asked on December 2, 2015 under Employment Labor Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

First, unless managing an optical department in a retailer competes with this doctor's practice, the non-compete is irrelevant: a non-compete *only* applies to competitive positions. Unless the doctor is an opthamalogist who sells eyeglasses, for example, it is very difficult to see how a retailer's optical department would compete with the doctor.
IF the optical department does compete with the doctor, then the non-compete is enforceable against you. The geographic area (45 miles) is most likely reasonable and fully enforceable. A two-year term is longer than courts would generally enforce against anyone but a company owner (e.g. an owner who sold his/her business and signed a non-compete as part of the sale), but that does *not* mean that the agreement is not enforceable; rather, if you challenged the length or duration of the agrement, a court would most likely "blue pencil" it to reduce the length to something more reasonable for an employee at your level, which is typically around 6 months.
So you can most likey be prohibited from taking a competing position for, say, 6 months, in the radius from which the doctor draws patients, but could take a non-competing position at will.


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