I am a medical professional who works under a doctor who owns their own practice. My contract states salary of 40 hours. Over the past couple months my hours have been cut and I have had to work for less money. I currently have a non-compete agreement for a 10 mile radius for two years, and I want to pursue another office who sits outside of this 10 mile radius but they have 1 office that sits within 10 miles that I probably will not work at but may have to help out from time to time.
It sounds like this could be a contract interpretation issue. In these situations, the exact wording of the non-compete is extremely important. You should have an attorney review your agreement.
A prior breach by an employer might provide a defense to a claim against you for violation of your non-compete. However, you need to have an attorney review the agreement with you in order to understand the contract in the proper context of your underlying facts and the applicable law.
Best of luck to you.
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It sounds as though you have a basis to state a claim for breach of contract, or form affirmative defenses on that same basis in the event that the employer were to seek breach against you for violating the non-compete. However, those answers are also tied into the four corners of your employment agreement. I have reviewed and revised these agreements as part of a negotiation between a prospective employee and employer relationship subject to an employment agreement, and have also litigated disputes over these agreements throughout my career. Depending upon the reach of the agreement terms and covenants as drafted, there are sometimes disclaimers that limit the rights and remedies under that agreement to the employee and or employer (but in most cases, the employee). By example, I recently reviewed an employment agreements that contained language limiting the application of breach as a defense. More specifically, the contract provided that claims for breach shall not serve as affirmative defenses for breach, which should that language be included in your agreement that may preclude you from using your former employers breach as an affirmative defense against any action the employer may file if you were to violate the non-compete. As a practical limitation, the language solely permits the filling of a claim for breach, rather than using the opposing party's breach as a defense for your breach.
Moreover, since your employer may be in violation or breach of its/his/her own agreement, the remedies set forth for that breach, and prospective cure, are likely contained within the four corners of the contract. Meaning, prior to initiating action or holding the employer responsible for breach, there may be an obligation to notice the employer of the breach and afford the employer an opportunity to cure by process outlined in the language of the contract. Otherwise, there may be language limiting the scope of the employers time allocations for your employment, to wit; the difference between wording like "shall" or "up to" can change the entire dynamic of obligations under the contract with respect to the working hours promised to you by means of that employment contract.
For the foregoing reasons, and in contemplation of other rights and remedies that may be afforded to you by law and or contract, you need to seek the advice of counsel and share the employment agreement so that the attorney can properly advise you. I wish you the best of luck in resolving this matter.
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