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Prospective employee E signed a job offer stating that his or her first day of work will be two months into 2022. The contract includes a non-compete agreement (NCA) of a duration of 8 months within 100 km of the employer's headquarters (effectively the whole city of Montreal). Would the NCA would be enforceable if E quit before the starting day because of a better offer? The fields/duties could overlap.

E is a fresh graduate with only a couple of internships (no specialized skills). E's livelihood would be severely impacted if the NCA is to be enforced.

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    What does the non-compete clause say? If it says something like "you are not allowed to take any job within the city" then it's illegal by itself (at least in most places).
    – PMF
    Sep 27, 2021 at 8:55
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    Question: has the employer accepted the employees offer (e.g. by countersigning the offer)? In some jurisdictions (e.g. Switzerland) this appears to happen on the first day of work. Until then (at least in common law countries), the employee can retract the offer.
    – abligh
    Sep 28, 2021 at 6:12
  • I believe the most important issue in the US is that without consideration there is no contract. Has the employer provided OP with something like a signing bonus? I believe that this would also be important in Quebec. I believe that the offer letter is just a statement of intent and not a legally binding contract.
    – emory
    Sep 28, 2021 at 20:29
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    I have to believe that the company could make the NCA enforceable if they wanted to (but they don't so they won't). All they have to do is pay OP a huge signing bonus contingent upon the NCA. OP can work for a competitor if OP wants to, but would have to return the bonus. The company wants something for nothing and is happy for OP to believe the NCA is enforceable.
    – emory
    Sep 28, 2021 at 20:33

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Quitting before the start date: is the non compete enforceable?

The non-compete is unenforceable unless the employer has provided you with material information that you can use to the detriment of the employer. Even in that case, the non-compete as outlined in your description seemingly exceeds the legitimate interests of the employer (see art. 2089 of the Civil Code of Québec). This means that the non-compete clause would be curtailed in court because the employer cannot prove that his business (or market share) encompasses the area depicted in the clause.

The reason of being of non-compete clauses is to protect the employer from a potential misuse of information the employee obtained pursuant to his employment, such as trade secrets and information about clients. The fact that you are a fresh graduate suggests that you are dealing with just some typical intermediary who really has no "trade secrets" and who is not providing you with key information, let alone for a job that is scheduled to start five months later.

Non-compete clauses that are overly broad contravene public policy in that they would singlehandedly exclude civilians from the labor market and disproportionately impair free trade.

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