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Noncompetition Agreement

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  • Noncompetition Agreement

    My husband is a delivery fdriver for a comapny that had him sign a Noncompetition Agreement when he started. I don't have a copy of it, so I don't have the definate details.

    He has the oprtunity to work for one of thier competitors and he feels that he can not accept the position beacuse he signed this agreement.

    How likely are these agreements to be enforced in Massachsuetts, for a "Delivery Driver"? What would be the consequences if they did try to enforce?

  • #2
    We can't even begin to guess the enforceability of a contract we have not read. But he can certainly take it to a local attorney and have it checked out.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      MA has been doing some funny things with non-competes.

      Generally, the courts will consider the reasonableness of the geographic, time, scope of business limitations, and legitimite business interest in enforcing a noncompete.

      Many MA courts also suscribe to the school of thought that a non-compete signed after employment is not valid without new consideration (continued at-will employment, not being adequit consideration). It's an area of some contraversy.

      At least one MA court (Lycos, Inc v. Lincoln Jackson was a recent 2004 case) has held that if the job duties have changed subtantially, and the noncompete was not renewed each time the position changed, then the original non-compete would not be enforceable.

      Keep in mind, there are also non-solicitation and non-disclosure agreements that may be packaged with the non-compete, and are much easier to enforce.

      You also might want to let the prospective employer know about the non-compete, since you don't any unpleasent surprises down the line.

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      • #4
        I forgot to add, the only surefire way to break a non-compete is to move to CA, as just about all non-competes are illegal here.

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        • #5
          Originally posted by TheRed View Post
          Generally, the courts will consider the reasonableness of the geographic, time, scope of business limitations, and legitimite business interest in enforcing a noncompete.
          My quick google found the same. I can see a sales rep being barred from going to a competitor, but not a delivery driver.
          Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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          • #6
            Well, every single US court considers those factors. More or less weight is given to the ability of the affected employee to earn a living if the non-compete is enforced. Also the courts differ on throwing the non-compete out wholesale versus modifying the terms.

            Sometimes delivery driver and sales rep are one and the same, like Frito-Lay.
            Last edited by TheRed; 01-10-2008, 12:54 PM.

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            • #7
              Originally posted by TheRed View Post
              Sometimes delivery driver and sales rep are one and the same, like Frito-Lay.
              Ayuh, but my reading of the OP's post was that there are no sales involved, simply delivery.

              If there ARE sales involved, the equation changes and the non-compete agreement MIGHT make sense and be enforceable.

              The best bet is to get the document and take it to a lawyer experienced in such matters.
              Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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              • #8
                You need to take the contract (non-compete) to an employment or contract attorney to see if it is enforceable - there's no way we can say for sure.
                Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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                • #9
                  problem is that he didn't get a copy of it, and so how do you ask for a copy without raising suspiscions?

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                  • #10
                    I do have one suggestion as to that.

                    In MA, employers are required by law to allow employees to see and have a copy of their personnel file. While I can't promise you that the non-compete agreement is in his file, there is at least a good chance of it.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                    Comment

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