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I had a non-compete that with company X that I could not work directly or indirectly for company Y for 10 months. I left company X and I became a contractor for company Z who assured me that the non-compete would not hold up for abc reasons (I was promoted so the old non-compete didn't hold up) and they were confident they could defeat the non-compete if necessary. They then placed me at company Y. I worked for 10+ months as a contractor and started as a full time employee recently.

Now that it has been past 10 months, and company Y never found out or questioned my status, is there anything they can do if they found out I had been working there the whole time?

thanks,

  • What are the "abc reasons" company Z told you? Also, you might want to clarify the meaning of "could not work with Y for 10 months", since in a context of non-compete clauses it typically means you would have to wait 10 months before working with Y, whereas you subsequently mention that the duration of your work with Y was longer than 10 months (hence the confusion). – Iñaki Viggers Apr 17 at 15:08
  • You don't have a non-compete clause with Y, why would they care if you breached your contract with X? – Nuclear Wang Apr 17 at 15:17
  • @IñakiViggers It said I could not work for company Y for 10 months after I left company X, however after company X I started with company Y 2 weeks later. After 10+ months after I left company X, I became full time at Y. – my_default_name Apr 17 at 15:18
  • @NuclearWang I am concerned about repercussions from X for violating it after the duration is over. – my_default_name Apr 17 at 15:28
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Can non-competes be enforced after expiration?

Strictly speaking, it can no longer be enforced. Instead, company X may still obtain remedies for your breach of contract (I am definitely not "condemning" you, as I totally understand your position; I'm just explaining the vulnerability to which you are exposed).

What you call expiration is more of a "freezing period" during which you were prohibited to work for company Y. But what matters is the concept of statute of limitations, which is the period during which company X may sue you for breach of the non-compete clause (and hence, breach of contract). The statute of limitations for breach of contract varies by jurisdiction. In jurisdictions of the U.S., typically it is three or six years.

It was risky for you to rely on company Z's "assurance", especially if Z did not memorialize --in writing-- that it would defend you in the event that company X sues you for breach of contract (after all, Z alleged being "confident they could defeat the non-compete if necessary").

Furthermore, company Z's allegation that your promotion nullifies or supersedes the "old" non-compete seems devoid of merit, at least at first glance. One would need to know the terms of your contract with company X to ascertain whether company Z's assessment is accurate.

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You don't give enough information to say whether or not your employment at Y violated the non-compete. The fact that you have a different job title might or might not make any difference, depending on the terms of the non-compete contract. If that contract simply said, "Employee shall not work at Y", then having a different job title would make no difference. If it said, "Shall not work at Y as a welder" or whatever job description, and you got a job at Y as a truck driver, then you would not be violating the contract. If you got a job there supervising welders but didn't do any welding yourself, you'd probably be okay, but it might be pushing it.

But let's assume for the sake of argument that your employment at Y DOES violate the non-compete. If you worked for Company Y during the period that the non-compete was in force, then Company X could still sue you for violating the agreement for the time that it was in force. They couldn't sue you for working for company Y after the agreement expired, but the fact that the agreement has now expired doesn't get you off the hook for violating the contract while it was in force.

If contract law worked that way, people who want to break a contract could often get away with it by just stalling until the contract expired. Like, "Yes, we guaranteed that our work would be completed to your satisfaction, but we decided that job was boring so we quit working on it. As we're no longer working on it, the contract term is over, and we're just keeping your money even though we never finished the work."

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