That would depend on whether the non-compete was a condition imposed solely upon your taking the new position or whether the provision was broader in scope to encompass any position within the company. You should consult an attorney specialized in contract or employment law. Best of luck.
The above is NOT legal advice, and is NOT intended to be legal advice. No Attorney-Client relationship is created... more
The above is NOT legal advice, and is NOT intended to be legal advice. No Attorney-Client relationship is created through the above answer.
I'm not entirely clear on the facts and your question based on what you wrote here. Regardless of whether the employer terminates the employee or if the employee quits, the covenant not to compete may still apply. However, because each of these contracts / covenants / clauses are different you should try to meet with an employment attorney to discuss the situation. Some of these agreements are overly broad anyways, so sitting down with an attorney to discuss your situation is probably in your best interest.
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My responses to questions on Avvo or other internet sites are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo does not establish an attorney-client relationship with me or anyone at my firm. That relationship is established only by individual consultation and execution of a written agreement for legal services which I provide to my clients.
What you ask is probably addressing what's called the "consideration" part of the non-compete. These tend to be widely variable and as such there is no general answer which will be helpful. You should bring the non-compete to an attorney for review.
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One would need to review the contract to be sure, but it sounds to me as though employment would be a condition precedent to the non-compete taking effect, and if the employee never starts working in the new position then the contract is of no force and effect. This of course is based on the information which you've provided and one would have to review the contract and ascertain all pertinent facts in order to provide you with a proper legal opinion.
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Courts in Massachusetts scrutinize non-competes pretty closely - particularly when the employer has not, through training or on the job experience, imparted a unique and valuable skill to the employee. I would have to know more about the specifics, but the employer would have a heavy burden here.
It is my position that there is no contract. The only exception may be a disclosure of confidential information during the interview process. One would have to review the agreement, however.
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