Do you remember what you wore your first day of work 4 years ago?
I doubt it.
Do you remember if you signed a non-compete agreement?
I would hope so, but many Virginians do not remember if they signed a non-compete agreement upon being hired.
Now that the economy is down, and people are changing jobs, Virginians are wondering, “Did I sign a non-compete agreement?” and “How can I find out if I signed one.” I hope most importantly, that Virginians are wondering “what happens if I violate my non-compete?”
To begin, let me start by advising all Virginians, DO NOT VIOLATE YOUR NON-COMPETE AGREEMENT. I cannot advise anyone to breach a contract, and even if I could, very little good ever comes from such a breach.
If however, you have already broken the agreement, or your ex-employer believes you have, I can tell you with some certainty, one of two things will happen:
(1) Your Employer will come after you legally; or
(2) Your Employer will NOT come after you legally.
Clearly, we prefer the non-litigation route. It is always better to avoid spending your savings on attorneys’ fees, and spending the next two years in litigation. Further more, business litigation is emotionally stressful, and could hurt your reputation in the marketplace.
Unfortunately, not everyone reads our blogs and takes our advice, so many clients call us AFTER they have violated their non-compete agreement.
So what do you do if you have breached it?
Here are some truths about non-compete litigation in Virginia:
v Agreements are binding if they are reasonable (yes that means that you can’t compete) under Virginia law;
v If you left on bad terms, your employer is much likelier to come after you legally;
v Employers often will make an example out of one employee violating their non-compete agreement, in attempt to keep all others in line;
v If you lied about leaving, why or where you were going, ex-employer will assume you are hiding something else;
v Your new employer will not likely want to help you when the you know what hits the fan;
v Your new employer can fire you for failing to disclose you had a non-compete agreement;
v If your employer thinks you are competing, they will look for other mistakes: read your old emails, hire a PI to follow you, dig up whatever they can;
v If they have to hire an attorney to sue you for breach of contract, chances are they will allege you did other things: (1) defamation; (2) breach of fiduciary duty; (3) tortious interference of contract, etc.
v It is always possible to negotiate yourself out of the non-compete (ie – make an offer of a buyout), but employers are much less likely to engage in such discussion if you have already breached it
Ok, I didn’t answer your question. What do you do if you have already breached it?
- Call an attorney who practices in the state and county where you used to work;
- Have the attorney review your agreement, and discuss the actions you have already taken;
- Notify your new employer of the breach, and the agreement (they may fire you right away and then you are no longer in breach);
- Discuss strategy - Should you try to negotiate, or could you find a new job and avoid the whole mess?
- If the lawsuit has already been filed, DEFEND and have a good offense – did your employer also break the agreement?
These are not easy cases to fight in Court, but they can be defended successfully in the right circumstances. Good luck, and let us know if we can help.
To speak with an attorney about your employment contract, please contact our firm at (866) 985-0098 or email@example.com.