Contract non-compete clause question

[musc]

I am going to check with a local attorney but I thought I would throw this out there and get some input. I work in a medical practice where I signed a non-compete clause for 9 months within a 15 mile radius in the same specialty. So I am contemplating switching to competitor whose main office is actually outside that 15 miles but has satellite office in the same area I am now (actually the same building as both practices just lease this satellite space from the hospital).

I figure I am safe in the office that is outside the 15 mile radius but may not be able to work in the satellite location...unless I can find a way around the non-compete. From what I read is that if my employer breached the contract in some way, then I would not be bound by the non-compete.

My question is would this constitute a breach...per the contract I was supposed to be provided with a cell phone for work related calls, being on-call, etc. I was never given one. Instead I am given $25 a month and was told to use my own phone which I using a Google voice number i set up for work. We never amended the contract I just simply assumed that is how it was going to be. I am not sure if the fact that i never challenged it is the same me accepting the terms; however, there is nothing in writing. Would this be considered a breach on my employers behalf and thereby relieve me of my non-compete?

[direwolfM3]

Originally Posted by musc

I am going to check with a local attorney but I thought I would throw this out there and get some input. I work in a medical practice where I signed a non-compete clause for 9 months within a 15 mile radius in the same specialty. So I am contemplating switching to competitor whose main office is actually outside that 15 miles but has satellite office in the same area I am now (actually the same building as both practices just lease this satellite space from the hospital).

I figure I am safe in the office that is outside the 15 mile radius but may not be able to work in the satellite location...unless I can find a way around the non-compete. From what I read is that if my employer breached the contract in some way, then I would not be bound by the non-compete.

My question is would this constitute a breach...per the contract I was supposed to be provided with a cell phone for work related calls, being on-call, etc. I was never given one. Instead I am given $25 a month and was told to use my own phone which I using a Google voice number i set up for work. We never amended the contract I just simply assumed that is how it was going to be. I am not sure if the fact that i never challenged it is the same me accepting the terms; however, there is nothing in writing. Would this be considered a breach on my employers behalf and thereby relieve me of my non-compete?

My gut tells me that it would not be considered breach of contract. But even if it did, if you accuse them of breach of contract, they would probably try to fight it in court. Do you really want to waste money in court fighting it. Also, in my experience, if both practices have the same referral pool, current practice is not going to allow you to set up shop in the same building.

I'm sorry but at first glance, it doesnt look like this can work in your favor.

[bbbbmw]

What would you consider to be the "right" thing to do? When you signed the non-compete, was there any mis-understanding on your part that you were agreeing not to go to work for a competitor within 15 miles? Was it not clear?

And if your conscience doesn't motivate you, your new employer may fire you immediately when they find out you didn't disclose your non-compete. The medical community is a small world, and even though the companies compete, the MD's must work together.

[musc]

Thanks for the input. I fully understood what the non-compete meant when I signed it. Being that the competitors main office is beyond 15 miles from my current employees offices, technically I can still work at that location and not be violating the non-compete. After the 9 months then I would be free to work in the satellite offices. I have friend that is doing this after switching hospitalist positions to a competing hospital. He is simply working at one of the smaller satellite branches outside the 20 mile covenant.

I haven't taken the new position yet but before I did I would certainly disclose in advance to my new employer that I have a non-compete since they would be involved in the suit or cease and desist. I would also definitely consult an attorney in advance to get there advice before moving forward.

Thanks again guys!

[MrRoboto]

I wouldn't worry about it at all. Unless you are a senior key employee of the current company they are virtually unenforceable.

[bbbbmw]

Originally Posted by musc

Thanks for the input. I fully understood what the non-compete meant when I signed it. Being that the competitors main office is beyond 15 miles from my current employees offices, technically I can still work at that location and not be violating the non-compete. After the 9 months then I would be free to work in the satellite offices. I have friend that is doing this after switching hospitalist positions to a competing hospital. He is simply working at one of the smaller satellite branches outside the 20 mile covenant.

I haven't taken the new position yet but before I did I would certainly disclose in advance to my new employer that I have a non-compete since they would be involved in the suit or cease and desist. I would also definitely consult an attorney in advance to get there advice before moving forward.

Thanks again guys!

Sorry - I misunderstood - thought you were planning to go to the satellite office from day one.

[musc]

Originally Posted by bbbbmw

Sorry - I misunderstood - thought you were planning to go to the satellite office from day one.

The only way I would is if I could prove there was a breach of contract. Otherwise I think I would be restricted. One of our newer satellites is actually under the 15 miles from the competitors main office (11 miles); however, this satellite wasn't named in the contract because it didn't exist at the time we signed.

I am sure regardless he will try to sue me. He is a bit of a hothead and a loose cannon and is the kind of guy that would spend 10s of thousands in litigation just because he can.

[LinkA8A0A]

I'm not a lawyer, but I play one on television.

Seriously, I think because you agreed to take the 25 in place of the phone, regardless of whether a new written contract was created or not, they made the offer, you gave consideration and accepted the offer...in your actions. There would have been a breach if they didn't give you anything...but they provided something of fairly close value.

I think as long as you can work out of the main office you'll be fine.

[moveswiftly]

1. That's a fairly reasonable non-compete clause. However, enforcement may be immaterial to the employer depending upon your position in the company and how valuable what you have gained from the employer is relative to the market you work in.

Even if there is enforcement, it did there may just be money damages.

2. When you accepted the $25 a month in lieu of the cell phone, that was probably considered contract modification. No breach there. Oral agreement (and your standing by and taking the money) would be enforceable.

[dtwyim]

It all depends whether you are willing to spend $ in case they do sue you for breach of contract. You can look at lawyer fees as part of business cost.

As usual, whoever willing to spend more $ and get a better lawyer "wins". Of course, the lawyers are the real winners no matter the outcome.