竞业禁止条款的损害赔偿
竞业禁止条款的损害赔偿
我之前写过关于竞业禁止条款的文章，特别是雇佣合同中的条款。基本上，法律允许在雇佣合同或企业出售合同中达成协议，限制该员工或前员工与其前雇主竞争。只要合理限制竞争持续时间和适用范围，在北卡罗来纳州，这种做法就是合法的。
但是，如果您违反了有效的竞业禁止条款，会发生什么情况？旧雇主可以做什么，竞争员工可能要承担哪些损失？竞业禁止条款是合同的一部分，雇主因违反该条款而提出的索赔是违约索赔。违约的通常损失是使非违约方处于与合同未违约时相同的地位的金额。通常确定这一点相当简单。如果我有一份协议，以 200,000 美元的价格为某人建造房屋，并且我建造了那栋房子，但房主没有付钱给我，那么房主将花费 200,000 美元来让我处于如果房主做了他应该做的事情时所处的地位。也许考虑到我应该比我得到这笔钱更早得到它（不包括获得它所花费的任何律师费，但这是另一个帖子）。
但是让我们反过来看这个例子。如果业主付给我 200,000 美元，但我没有建造房屋，合同赔偿金是多少？法律不会强迫我建造房屋（称为“特定履行”），赔偿金也不会自动等于业主付给我的 200,000 美元。赔偿金将是业主必须支付给另一个承包商建造同一栋房屋的金额。如果业主与我达成了一笔好交易，如果另一个承包商收取 250,000 美元，我可能必须为我的违约行为支付 250,000 美元。
让我们回到违反合同的损害赔偿问题，如果该协议是竞业禁止条款。请记住合同损害赔偿的一般理论和允许竞业禁止的公共政策，同时承认人们应该能够在他们想要的地方和从事他们想要的职业。北卡罗来纳州违反竞业禁止条款的损害赔偿是主因前雇员的非法竞争而损失的利润金额。你不能只要求前雇员获得的所有利润，即使他们违反了竞业禁止条款。雇主必须证明他的损失，而不是前雇员的收益。回到我们的一般合同房屋示例。如果我违反了建造价值 20 万美元的房屋的合同，因为我想为别人建造价值 60 万美元的房子。房主得不到我从别人那里赚到的钱，他只能得到他损失的钱。
法律要求企业利润损失的证据必须具有合理的确定性，这使得竞业禁止条款损害赔偿更加困难。不允许推测或估计。对于新企业来说，这是一个几乎不可能克服的障碍，因为他们没有可以向法庭展示的业务历史。即使是老牌企业，他们也必须有足够的证据让陪审团做出合理的确定性裁定。
由于违反竞业禁止协议的赔偿金额难以确定，许多竞业禁止协议都附加了违约金条款。本质上，这是一项协议，规定如果发生违约，赔偿金额为一定数额。这使得雇主和前雇员能够更轻松地计算违反竞业禁止条款的风险和收益。
Damages for Non-Compete Clauses
I’ve written before about non-compete clauses, particularly for employment contracts. Basically, the law allows for an agreement in an employment contract or contract for the sale of a business to limit that employee or former employee from competing with their former employer. As long as the competition is reasonably restricted as to how long it lasts and where it applies, it is legal in North Carolina.
But what happens if you violate a valid non-compete clause? What can the old employer do and what damages might the competing employee be liable for? A non-compete clause is part of a contract, and an employer’s claim for violating that clause is a breach of contract claim. The usual damages for a breach of contract is the amount of money that would put the non-breaching person in the same position as if the contract was not broken. Usually determining this is fairly simple. If I had an agreement to build someone’s house for $200,000 and I build that house, but the owner didn’t pay me, it would cost him $200,000 to put me in the position I would be in if the owner did what he was supposed to. Maybe with some interest to take into account the fact I should have had the money earlier than I got it (and not counting any attorney fees it took to get it, but that is a post for another time).
But let us flip the example. If the owner paid me $200,000 but I didn’t build the house, what would the contract damages be? The law would not force me to build the house (called “specific performance”) and the money damages would not automatically be the $200,000 that the owner paid me. The damages would be the amount of money the owner would have to pay another contractor to build the same house. If the owner got a good deal with me, I may have to pay for my breach of the contract $250,000 if that is what another contractor would charge.
So let’s go back to the damages for the breach of a contract when that agreement is a non-compete clause. Keep in mind the general theory of contact damages and the public policy that allows non-competes while recognizing that people should be able to work where they want and in what occupation they want. The damages for the breach of a non-compete clause in North Carolina is the amount of profits lost by the employer as a result of the illegal competition of the ex-employee. You can’t just ask for all profits that the ex-employee made, even if they were in violation of the non-compete. The employer has to prove his losses, not the ex-employee’s gains. Going back to our general contract house example. If I breached a contract to build a $200,000 because I wanted to build a house for somebody else for $600,000. The homeowner doesn’t get the amount I’m making from somebody else, he only gets what he lost.
Making it additionally difficult for non-compete clause damages is that the law requires the proof of a businesses lost profits to be made with reasonable certainty. Speculation or estimates are not allowed. For a new business, this presents a nearly impossible hurdle because they have no history of business to show the court. Even for an established business they have to have enough evidence for a jury to find with reasonable certainty.
Because of the difficulty of determining damages in a breach of a non-compete, a lot of non-compete agreements have an additional provision for liquidated damages. Essentially this is an agreement that if a breach should occur, the damages with be a certain amount. This makes it much easier for an employer and ex-employee to each calculate their risks and benefits of a breach of a non-compete clause.
你可能还会感兴趣的话题：
扫码联系我们