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Non-competition, non-solicitation and confidentiality agreements

If the employer delays enforcing a non-compete agreement, or doesn’t enforce it on everyone, can I relax?

The short answer is no. Non-competition agreements typically include a clause that says the company does not waive its legal rights if it does not immediately seek relief. The fact that the company does not come after you right away, or that it didn’t try to hold other former employees to the non-compete, is not an effective legal defense to avoid the terms of the non-compete you signed.

Do not count on your manager or another employee telling you that the “company never enforces those things any way.” A well written non-compete agreement will say that it can’t be modified, altered or waived unless there is an amendment that is signed by both the employee and a senior person with authority to bind the company. I know someone whose boss reassured him that he could accept a new job elsewhere and not to worry about the non-compete. When the time came for the employee to leave, he was told that the boss had no authority to make that decision. The employee had to turn down the job opportunity.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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