Legal Question in Employment Law in California

First, non compete agreements are generally void in California save for some exceptions. So it is possible that the non-compete portion of the agreement is unenforceable regardless of the other party's breach.

Next, agreements do not automatically become "void" because one party has breached. You may have the right to rescind the agreement or seek to enforce it, and your success will depend, in part, on the materiality of the other party's breach. Something "different" and a "little less" may not be material.

From a larger perspective, nothing in a contract is risk free. You can choose the treat the agreement as void, and the other side can attempt to enforce it by legal action. The potential consequence of treating an agreement as "void" is that a court may see the situation differently, and enforce it by, for example, awarding damages. If the contract has an attorneys fees clause, you may also be required to pay the other side's attorneys fees; if you prevail, they may have to pay yours.

All of which is a long way of saying: consult with an attorney before doing anything. An ounce of prevention - and a little bit of advice - may save you much in the long run.

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