Your Employer May be Liable for Honoring An Unenforceable Non-Compete Agreement With A Prior Employer -- Silguero v. Creteguard, Inc.

My associate, Christina M. Coleman of the Law Offices of Lisa L. Maki recently argued and won this appeal.   

In California, non-competition agreements are generally unenforceable and against public policy under Business and Professions Code section 16600 and have been since 1972.   

Nonetheless, employers continue to include these provisions in employment and separation agreements, perhaps believing that the illegal clause will deter competition by the departing employee.

In this case, the Court made clear that an explicit no-hire agreement between a former and past employer would be illegal and illegal and unenforceable.  The Court further concluded that terminating Ms. Silguero "out of respect for" an illegal non-compete agreement with her prior employer would amount to achieving the same result in an indirect matter.  The Court held that if Ms. Silguero could prove her allegations, her new employer would be liable for the common law tort of Wrongful Termination in Violation of Public Policy.

Court: Court of Appeal of California, Second Appellate District
Opinion Date: 7/30/10
Cite: Silguero v. Creteguard, Inc., 2010 Cal. App. LEXIS 1263 (Cal. Ct. App. 2d Dist. July 30, 2010)

Recording Phone Calls and Conversations Illegal in California?

California and 11 other states are "two-party consent states."  They require the consent by both parties to the call or conversation prior to recording the communication.  The other 11 states requiring 2 party consent are Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.

California Penal Code § 632(c) defines a "confidential communication" as any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.




Violation of California Penal Code § 632 subject the violator of fines between $2,500 to $10,000 per recording, and imprisoment.