Posts tagged with "non compete lawyer westport"

Enforcing a Non-Compete in Connecticut

If you signed a valid non-compete agreement, try not to just forget about it. Former employers are using non-competes for more than just show nowadays, they are enforcing them aggressively. If you are thinking about working for your former employer’s competitor, or in another area that may be covered by a non-compete you previously signed, here are two ways your former employer may try to enforce the previous agreement against you.

Cease and Desist

First, attempted enforcement of a non-compete agreement in Connecticut will likely begin with a Cease and Desist Letter. Once the employer has determined (or has a good faith belief) that a former employee is breaching a non-compete, typically the next step will be to engage legal counsel to send a demand or “cease and desist” letter to the employee.

A well-drafted demand letter contains an accurate summary of the contractual, statutory and common law restrictions that bind the former employee, a summary of the facts showing that the former employee is in breach of his or her non-compete (or statutory or common law), a description of the harm suffered or potential harm the employer may suffer as a result of the former employee’s breach of duties, and a demand for specific actions and written assurances.

In many non-compete situations, it is also appropriate at this stage to send a separate demand letter to the former employee’s new employer setting forth the facts and arguments as to why the new employer’s engagement of the former employee will unlawfully interfere with the non-compete between the former employee and old employer.

Cease and desist letters must convey the message that the former employer takes the former employee’s continuing obligations seriously and will not allow its goodwill, trade secrets or confidential information to be unlawfully misappropriated. These letters are a critical tool because many non-compete situations are resolved by settlement following the exchange of the cease and desist letter and response.

Going to Court

Second, and more drastically, you may be taken to court. A former employer may file suit for a temporary restraining order, an injunction, and damages. If the non-compete situation is not resolved by the sending of cease and desist letters, then the employer must assess whether it will file a lawsuit to enforce the non-compete. Unlike most lawsuits, where the goal typically is to win a judgment awarding money damages after what is usually a lengthy process leading to trial, the goal in most non-compete situations is to obtain an immediate order from the court.

This order is called a preliminary injunction (or in certain emergency situations a temporary restraining order). A preliminary injunction will order the former employee (and new employer) to stop taking certain actions, such as working for a competitor altogether, calling on certain customers for the new employer, or using or disclosing confidential and proprietary information.

If the former employee or new employer violates the preliminary injunction, they are in contempt of court. The idea is that the preliminary injunction will stop the conduct, preserve the status quo between the parties, and prevent further harm to the former employer. A permanent injunction is issued after trial.

Seeking a Preliminary Injunction

Obviously, the decision to file suit and seek a preliminary injunction must be evaluated carefully given the expense and uncertainty of litigation. This is particularly so in non-compete situations where the outcome of litigation is often influenced to a large degree by particular judges’ views on non-competes generally.

In order to obtain a preliminary injunction, the employer must establish that it is entitled to such relief by showing that: the employer is likely to prevail on the merits of the case at trial; the employer faces irreparable harm; the balance of harm (that facing the employer as compared with the harm the former employee could suffer by, for example, not being able to work for a particular new employer) favors the issuance of an injunction; and the public interest is not adversely affected by the issuance of a preliminary injunction.

In addition to assessing whether this standard can be met, the employer should pause to consider whether it will come to court with “clean hands” (that is, whether it has acted fairly). The issuance of a preliminary injunction is a matter squarely in the judge’s discretion and is a matter of equity (fairness), so it is important that the employer not overreach but rather only seek the protection necessary to prevent the misappropriation of goodwill, trade secrets, and confidential information.

Considerations to Make Before Filing a Lawsuit

Similarly, before embarking on litigation, the employer should evaluate whether it has breached any obligation to the former employee (such as the obligation to pay salary or commissions). Such facts will influence whether the court will grant an injunction, and also will likely result in the assertion of counterclaims against the employer in the lawsuit.

The assessment of whether to file a lawsuit must be made quickly. Delay undermines the argument that the former employee’s current actions are actively harming the employer’s business, and may in rare cases result in the former employee filing suit to obtain a declaration from the court that the non-compete is unenforceable.

Credit:, Robert Shea, Scott Connolly

If an employer is trying to enforce a non-compete against you, or if you are an employer looking to enforce a non-compete against a former employee, let the experience Employment Law Group of Maya Murphy, P.C. in Westport, CT help you with this process.

If you have any questions regarding employment law matters, do not hesitate to contact Joseph Maya and the other experienced attorneys of Maya Murphy at (203) 221-3100 or to schedule a consultation today.

How to Defeat a Non-Compete in Connecticut

So you are locked into a non-compete agreement, or are you? Here at Maya Murphy, P.C. in Westport, CT, our employment law attorneys have been enforcing and beating non-competes for over a decade. With experience in both New York and Connecticut tribunals, our employment law group has seen it all when it comes to non-competes. Below are just a few of the many ways our attorneys have poked holes in non-compete agreements and freed our clients from their restraint.

1. Your new job may not violate the precise terms of your non-compete agreement:

More often than you might believe, people do not carefully read over the precise words of their non-compete agreement, and don’t carefully consider whether it precludes their intended new job. This potential defense cannot be overlooked, and it often is. For example, in a recent Connecticut court decision, it was held that a lighting fixture employee who transferred to a competing lighting fixture company did not violate his agreement because his new employer did not have a similar product line in the marketplace and it was unlikely any trade secrets he may know would not be put to use.

2. Too vague:

Put simply, a non-compete must be concise and clear. It must define exactly what is restricted and not cover “any restaurant in a 30 mile radius” or “all companies who sell light bulbs in America” or “any company that is in the business of selling food.” A court would find such restriction overly broad and void for vagueness.

3. Unclean hands:

In order for an employer to ask a Court to Order an employee to act in good faith and honorably, the employer, itself, must first be doing so. If the employee departed from the company because of extreme harassment or blatant discrimination, the employer’s non-compete enforcement efforts will likely fail. And, too, if the employer was engaged in illegal or dishonest conduct, in which the employee did not want to participate, non-compete efforts for this reason will also likely fail.

4. No legitimate business interest to protect:

The two recognized and accepted purposes of a non-compete agreement are (1) the protection of trade secrets, and (2) the protection of valuable business relations.

5. Overly broad restraint on time, geography or activities:

Much like the vagueness discussed above, many non-compete agreements are found void for being overly broad. In Connecticut, a non-compete agreement must be legitimately related to a genuine business interest the employer has an interest in protecting and limited reasonably in time, duration, and scope. For instance, many courts find broad geographical limitations that fully restraint a persons employment opportunities void for being overly broad. Additionally, restrictions for more than 5 years are often found void for similar purposes.

6. Against public policy:

Sometimes the effect of a non-compete violates a broader social purpose. For example, if your employer only gave non-compete agreements to Hispanic employees or women of the company. The courts would always find these as a violation of public policy.

7. Fraudulent inducement:

It is what it sounds like, your employer lied to you about the non-compete either before you signed it or before you left their employ. It usually occurs when an employer orally tells an employee they will not enforce the agreement after they leave or that the employee must sign the agreement on the onset or never receive a bonus of a raise. The court will see that the employer tried to trick you and void the non-compete in those instances.

8. Contractual and factual defenses:

A non-compete agreement is a contract and is always subject to many defenses such as: (a) mistake of fact; (b) unsigned document; (c) forgery; (d) material mistake in formation; (e) duress; (f) and illegality.

These are just some of the many ways to beat a non-compete in Connecticut. If you are restricted by a non-compete, or are about to be, consult Joseph Maya and the other experienced employment law attorneys of Maya Murphy, P.C. before you take your next step. Put experience on your side, call 203-221-3100 or email today!

Credit: Alan Sklover, skloverworkingwisdom blog

Non-Compete Agreements: A Hot Stove of Debate

Massachusetts Governor Deval Patrick recently announced that he is proposing legislation to abolish non-compete agreements. This announcement re-ignited a debate in the Massachusetts community regarding non-compete agreements. In general, more established companies, particularly those in the technology arena, view non-competes as a favorable way of protecting intellectual property and maintaining a competitive edge by preventing former employees from unfairly competing and/or sharing business secrets. In contrast, start-up companies (and some venture capitalists) generally view non-competes as stifling innovation and job growth.

There are only a few states that have banned non-compete agreements in the union, California being one of them. Many point to California’s booming Silicon Valley to show the effectiveness of such unenforceability. With Massachusetts attempting to follow in California’s footsteps, the non-compete argument has heated up in Connecticut as well. Just last year, the Connecticut General Assembly passed a bill restricting the use of non compete agreements only to have it vetoed by Governor Malloy. When speaking on why he vetoed the bill the Governor had the following to say:

“The bill left certain key terms undefined or unclear.” “As a result” he added, “this bill has the potential to produce legal uncertainty and ambiguity in the event of a merger or acquisition. If signed into law, costly and time-consuming litigation would likely be required to provide necessary clarity.” So its back to the drawing board for Connecticut, but maybe they can take notes from how Massachusetts handles the issue later in the year.

What is a non-compete agreement?

By way of background, and in the rare event you have never encountered a non-compete agreement, a typical non-compete agreement involves a company requiring an employee to contractually agree that, if the employee should leave his or her employment with the company, the employee will not work for a competitor within a certain geographic range of the employer for a certain period of time. Non-compete agreements are commonly signed at the beginning of an employment relationship, as a condition of employment, but may be signed during the course of an employment relationship under appropriate circumstances.

Effect of Non-Competes on Employees

The most important thing to know about non-compete agreements is how they affect you in the event of your termination or resignation from your current employer. All too often, these agreements are signed, yet misunderstood by the employee. A non-compete can change your circumstances more than you think; the agreements limit where you can work, when you can work, and who you can work for. For many individuals, a non-compete may restrict their entire job pool and leave them with little to no opportunities close to home. For these reasons, it is essential to speak with an experienced employment law attorney before you sign a non compete agreement as a condition of employment.

The attorneys of Maya Murphy, P.C. have been practicing employment law for more than a decade in the tribunals of New York and Connecticut. If you have any questions regarding employment agreements, please do not hesitate to contact Joseph Maya and the other experienced attorneys at 203-221-3100 or to schedule a free initial consultation.

The Growing Controversy of Non-Compete Agreements

Here is an interesting read from a recent New York Times article by Steven Greenhouse. In the article, Greenhouse discusses the issue that is non-compete agreements in today’s workplace. As many know, non-compete agreements are used more and more frequently throughout almost every industry. What was once a practice limited to tech firms, essential employees and unique services has now been extended to landscapers, hairdressers, and machinists. The Connecticut General Assembly attempted to tackle the issue but had its bill vetoed by the Governor.

As such, Connecticut still relies on the basic common law premise that such agreements must protect a legitimate business interest and be reasonably limited in time and geographical scope. Read through Greenhouse’s article below:


Colette Buser couldn’t understand why a summer camp withdrew its offer for her to work there this year.

After all, the 19-year-old college student had worked as a counselor the three previous summers at a nearby Linx-branded camp in Wellesley, Mass. But the company balked at hiring her because it feared that Linx would sue to enforce a non-compete clause tucked into Ms. Buser’s 2013 summer employment contract. Her father, Cimarron Buser, testified before Massachusetts state lawmakers last month that his daughter had no idea that she had agreed to such restrictions, which in this case forbade her for one year from working at a competing camp within 10 miles of any of Linx’s more than 30 locations in Wellesley and neighboring Natick. “This was the type of example you could hardly believe,” Mr. Buser (pronounced BOO-ser) said in an interview.

Non-compete clauses are now appearing in far-ranging fields beyond the worlds of technology, sales and corporations with tightly held secrets, where the curbs have traditionally been used. From event planners to chefs to investment fund managers to yoga instructors, employees are increasingly required to sign agreements that prohibit them from working for a company’s rivals.

John Hazen, head of his own paper company, says the non-compete clauses protect businesses. Credit Matthew Cavanaugh for The New York Times

Restrictions in Massachusetts

There are plenty of other examples of these restrictions popping up in new job categories: One Massachusetts man whose job largely involved spraying pesticides on lawns had to sign a two-year non-compete agreement. A textbook editor was required to sign a six-month pact.

A Boston University graduate was asked to sign a one-year non-compete pledge for an entry-level social media job at a marketing firm, while a college junior who took a summer internship at an electronics firm agreed to a yearlong ban.

“There has been a definite, significant rise in the use of non-competes, and not only for high tech, not only for high-skilled knowledge positions,” said Orly Lobel, a professor at the University of San Diego School of Law, who wrote a recent book on non-competes. “Talent Wants to be Free.” “They’ve become pervasive and standard in many service industries,” Ms. Lobel added.

Because of workers’ complaints and concerns that non-compete clauses may be holding back the Massachusetts economy, Gov. Deval Patrick has proposed legislation that would ban non-competes in all but a few circumstances, and a committee in the Massachusetts House has passed a bill incorporating the governor’s proposals. To help assure that workers don’t walk off with trade secrets, the proposed legislation would adopt tough new rules in that area.

Arguments For and Against the Legislation

Supporters of the pending legislation argue that the proliferation of non-competes is a major reason Silicon Valley has left Route 128 and the Massachusetts high-tech industry in the dust. California bars non-compete clauses except in very limited circumstances.

“Non-competes are a dampener on innovation and economic development,” said Paul Maeder, co-founder and general partner of Highland Capital Partners, a venture capital firm with offices in both Boston and Silicon Valley. “They result in a lot of stillbirths of entrepreneurship — someone who wants to start a company, but can’t because of a non-compete.”

Backers of non-competes counter that they help spur the state’s economy and competitiveness by encouraging companies to invest heavily in their workers. Non-competes are also needed, supporters say, to prevent workers from walking off with valuable code, customer lists, trade secrets or expensive training.

Joe Kahn, Linx’s owner and founder, defended the non-compete that his company uses. “Our intellectual property is the training and fostering of our counselors, which makes for our unique environment,” he said. “It’s much like a tech firm with designers who developed chips: You don’t want those people walking out the door. It’s the same for us.” He called the restriction — no competing camps within 10 miles — very reasonable.

A Legislative Conflict

“The ban to non-competes is legislation in search of an issue,” said Christopher P. Geehern, an executive vice president of Associated Industries of Massachusetts, a trade group leading the fight to defeat the proposed restrictions. “They’re used in almost every sector of the economy to the seemingly mutual satisfaction of employers and individuals.”

The legislative fight here pits two powerful groups against each other: venture capitalists opposing non-competes and many manufacturers and tech companies eager to preserve them.

John Hazen, chief executive at Hazen Paper, said his 230-employee company in Holyoke, Mass., spends heavily to train workers on sophisticated machinery and elaborate paper-making processes.

“Non-competes reduce the potential for poaching,” said Mr. Hazen, whose company makes scratch lottery tickets and special packaging. “We consider them an important way to protect our business. As an entrepreneur who invests a lot of money in equipment, in intellectual property and in people, I’m worried about losing these people we’ve invested in.”

Rules for Non-Competes

The United States has a patchwork of rules on non-competes. Only California and North Dakota ban them, while states like Texas and Florida place few limits on them. When these cases wind up in court, judges often cut back the time restraints if they’re viewed as unreasonable, such as lasting five years or longer.

“In most states there has to be a legitimate business interest, and it has to be narrowly tailored and reasonable in scope and duration,” said Samuel Estreicher, a professor at New York University School of Law.

Daniel McKinnon, who had been a hairstylist in Norwell, Mass., lost a court battle with his former employer who claimed that Mr. McKinnon had violated the terms of his agreement when he went to work at a nearby salon. Mr. McKinnon said that he did not think the original restriction — to wait at least 12 months before working at any salon in nearby towns — still applied because he had been fired after years of friction with the manager there. Shortly after being fired, he went to work at a nearby salon.

But a judge issued an injunction ordering him to stop working at his new employer.

“It was pretty lousy that you would take away someone’s livelihood like that,” said Mr. McKinnon, who for the following year lived off jobless benefits of $300 a week. “I almost lost my truck. I almost lost my apartment. Almost everything came sweeping out from under me.”

He resisted the idea of traveling miles from his apartment to a new salon, saying that would have meant an unpleasant and costly commute.

“The salon where I worked was doing just fine — I don’t see why they needed to do this,” he said. “I basically had to give up a year of working.”

Employee & Employer Response

Wendi S. Lazar, an employment lawyer in Manhattan, said she saw an increase in litigation to enforce non-competes. “Companies are spending money, hiring lawyers, to go after people — just to put the fear of death in them.”

State Representative Lori Ehrlich, one of the main sponsors of the Massachusetts legislation to bar non-competes and vice chairwoman of the Joint Committee on Labor and Workforce Development, said that many people had complained to her about the restrictions being set for employees.

“It’s hurting growth in the economy by decreasing worker mobility and squelching start-ups,” Ms. Ehrlich, a Democrat, said. “They’re hurting families by making it so people are unable to work for an extended period of time. This has increasingly become exploitative to workers.”

Matthew Marx, a professor of entrepreneurship at the M.I.T. Sloan School of Management, said a recent study he did found that half of the nation’s engineers had signed non-competes, with a third lasting more than a year, and some more than two years.

The Impact of Non-Compete Bans

“Where non-competes are not enforced, there’s a more open labor market — companies compete for talent,” he said. “We used to have a saying at the Silicon Valley start-up where I worked, ‘You never stop hiring someone.’ They can go where they want. People are free to leave and start companies if they’re not happy.”

Professor Marx said California’s ban on non-competes was a major reason Silicon Valley was thriving. If a few employees there have an innovative idea and their bosses don’t want to pursue it, they can leave to found a start-up. But in Massachusetts, if employees with non-competes bring that innovative idea to their boss and it is rejected, they are stuck — or they would have to leave the company and wait a year before they could pursue their new idea. (Or they could move to California, where the courts would not enforce the Massachusetts agreement.)

Mr. Geehern of Associated Industries of Massachusetts denied that the California economy, with a 7.8 percent jobless rate, was doing better than the Massachusetts economy, with a 6 percent rate.

“If non-competes are so onerous and burdensome, why aren’t we seeing a significant migration of talent away from the companies that use non-competes toward the companies that don’t use them?” he said. “The companies that use non-competes still attract plenty of the best and brightest.”

Michael Rodrigues, a Democratic state senator from Fall River, Mass., said the government should not be interfering in contractual matters like non-competes. “It should be up to the individual employer and the individual potential employee among themselves,” he said. “They’re both adults.”

Maya Murphy is a full service law firm with offices in New York City and Westport, CT. Maya Murphy boasts an experienced roster of employment law attorneys who have practiced in the courts of New York and Connecticut for decades. Headed by Managing Partner Joseph C. Maya, the Employment Law Group at Maya Murphy can help you with non-compete agreements, offer letters, separation agreements, employment contracts, sexual harassment claims and much more. Call 203-221-3100 or email to schedule a consultation today.