We had someone that worked for us that had signed a contract to not work for a company that sold similar products as ours for a period of at least six months if ever terminated. This employee was terminated, and they ended up working for another company that was our competitor. Not only did they do this, but they ended up marketing the products in territories that we typically only market in. I plan on taking this to small claims court, as I cannot let them get away with this, and I was wondering what kind of damages can I sue for, as I would have to estimate the damages. For example, can I sue the former employee for what they used to sell daily on an average basis with us for the length of time they have been working with this company, or sue them for how much money we believe they've made since being terminated by us. Please let me know, as I would like to move forward as soon as possible, but need to prove damages.
Unless the contract provided for liquidated damages for breach of the non-compete covenant, you can only sue for the damages you can prove. That is to say that you will have to account for how you calculated the damages you are claiming on the complaint you'll be filing with the court. And, yes, that means exactly what it sounds like: if you can't prove in court that the employee going over to your competitor has cost you any money, you won't be awarded any damages from this breach.
That's assuming that you can prove that (a) the contract was breached and (b) that the non-compete clause is enforceable. New Mexico law allows for non-compete clauses in contracts, but not all non-competes are created equal (not all breaches are created equal, either).
Your best bet is to consult an employment law or business attorney and have him or her go over the agreement in question. It is impossible for any attorney on this website to provide you with the right answer, the one that fits your particular case because it accounts for all the relevant facts of your case. Most initial consultations with attorneys are free.
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