Provided by: Jennifer Kirschenbaum, Esq.
August 3, 2017
My Employer hasn't given me the opportunity to see as many patients as I was promised and now my compensation is really hurting. I was offered work in my non compete range. Can I take it since the employer breached first?
Thanks, Dr. K
Didn't you learn early that two wrongs don't make a right? Well, typically the adage rings true. Depending on language in your agreement, which I have not seen, likely the breach by the Employer will not void the enforceability of a properly drafted non compete - so long as the jurisdiction enforces non competes. In fact, the bigger issue is not so much the enforceability of the non compete on challenge, but the threat of potential enforceability for a breach of contract claim, which poses the threat of litigation - and once a lawsuit is filed - most of the time both sides lose monetarily - because of those damn lawyers.
Also, the prospective employer will likely be none too pleased to hear you have a contractually prohibition to working at their site - your doing so may open them up to a potential lawsuit as well - for interfering with a potentially enforceable contract.
Your best bet prior to accepting the new role - getting written consent from your Employer authorizing you to take the job without penalty or enforcement of the non compete. For help with the language, give me a call.