My husband has been working as an independent contractor (subcontracted) for a small business 6mths. He believes he signed a noncompete when he started, not sure nor does he have a copy (I know, ridiculous). During those 6 mths he was not paid the way he was originally told, and not paid for some runs (never got a check stub for anything, questions whether he is even "in the books") and discovered things that he felt was borderline/questionable fradulent. He decided to leave as soon as this all became clear and wants to go into business on his own and doesn't feel employer will go after him due to questionable business standpoints but I am still worried. Can he come after us? The demand in the area is high
It is really impossible to say whether the former "employer" will come after your husband and the strength of your respective positions since you are not sure whether he even signed a non-competition agreement. For any attorney to assist you, your husband will have to get a copy of the signed agreement, if one exists. Determining whether a non-competition agreement will likely be enforced is a complex inquiry. The terms must be reasonable in time and geographic scope and must be necessary to protect the former employer's "legitimate business interests."
I suggest that you seek the assistance of an attorney in your area who has experience with non-competition agreements. If your husband begins operating his own business and it is in violation of an enforceable non-competition agreement, a court could order him to disgorge (give the former employer) his profits. However, it sounds like a lot of other factors may weigh in. A lawyer could help you determine the strength of your respective legal positions regarding any existing agreement and discuss the other factors that may make it more or less probable that the employer would file suit against your husband in the first place. Then you can better assess the risk levels associated with various operational activities.
But you have to get the agreement first, in any case. You can either write a letter asking for any such agreement without acknowledging one exists or hire a lawyer to do that. A lawyer should be able to word a letter so that if the former employer does not respond, it will be hard for him to later cry foul.
Hard to say. There are many variables involved in analyzing a noncompetition agreement. Such agreements are generally enforceable in Ohio. However, without actually seeing the agreement and knowing all the facts, a definitive answer is impossible.
That being said, if there is indeed a noncompetition agreement in place, then the former employer can try to enforce it. That is where the facts will become important. If it goes to a court, the court will consider a three-prong test: 1) whether the restrictions are necessary to protect the employer’s legitimate interests; 2) whether the restrictions would impose an undue hardship on the employee; and 3) whether the restrictions would injure the public.
Then, even if the court finds the noncompete unreasonable, the court can still find the noncompete valid by making some changes to its terms.
If you are really concerned, then you need to ask the employer for a copy of the agreement if it exists and then take it to an attorney who can review all the relevant facts as well as the terms of the agreement.
Also, I am going to move this to the more relevant Employment/Labor practice area.
