Non-Compete Agreement: Is continued at will employment enough consideration to make an agreement enforceable.

Asked about 2 years ago - Duluth, GA

Non-compete was signed 8 months after employment started.

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    Answered . Yes, continued employment is sufficient consideration for a non-compete provision. Of course, the provision may be defective for other reasons, but you should assume that there was adequate consideration for the non-compete, and further, that if the provision is otherwise defective, Georgia's courts are now permitted to "fix" or "modify" otherwise defective restrictive covenants to make them enforceable, whereas years ago, defective restrictive covenants were stricken in their entirety.

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    Answered . I agree with the other attorney. Continued employment is sufficient consideration for a non-compete provision. However, such provisions are strictly construed, which basically means they must be in strict compliance with Georgia law. As the other attorney suggested the provision may fail for other reasons such as the the territory restriction is too broad or if the duration is too long, etc. In 2011 O.C.G.A. § 13-8-53 was enacted and it allows a court to modify a covenant that is otherwise void and unenforceable so long as the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties. However, this law only applies to noncompete agreements entered on or after the law went into effect. If your agreement was entered before 2011 then it will be subject to the former "no blue pencil" rule meaning it cannot be modified.

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