For a Non-Compete to be enforceable, there must be "consideration", which is a legal term for an exchange of value. For Non-Competes obtained from newly hired employees, usually the agreement only needs to state that the employer's willingness to hire the employee is the value exchanged for the employee's agreement not to compete. For existing employees, however, additional consideration is required to make an agreement enforceable. When employers obtain Non-Competes from long-standing employees without providing anything of value in return, they may be getting an unenforceable agreement. You need to provide additional value to an existing employee in exchange for the Non-Compete. This could be more money, new job responsibilities and titles, new benefits, or a change from "at-will" to "contract-employee" status. While the additional consideration does not have to be of tremendous value, it must provide a real benefit that the employee was not otherwise entitled to receive.
Make the Length of the Non-Compete Reasonable
A common reason that courts refuse to enforce a Non-Compete is that the agreement restricts the employee from competing for an unreasonably long amount of time. For example, a court will likely refuse to enforce an agreement that prohibits an employee from competing for the rest of his or her life. In contrast, in many industries, a Non-Compete with a duration of several months will be considered reasonable, and therefore enforceable. The general rule is that the duration of the agreement should not exceed the time reasonably necessary to protect the employer's legitimate business interests. What is considered "reasonable" varies from business to business, and requires a specific consideration of the facts and circumstances surrounding the agreement. This is one area where expert legal advice can be extremely valuable in creating an agreement with the maximum enforceable duration.
Make the Territory of the Non-Compete Reasonable
Many Non-Competes are unenforceable because they restrict competition over too broad of a territory. Non-Competes usually describe a restricted area in which the employee cannot compete. Oftentimes this restricted area is determined based on a certain mile radius from employer headquarters or facilities, or by a list of locations in which the employee is prohibited from competing. While these restrictions vary, the law requires the geographic scope of a restriction to be reasonable. While agreements that restrict employees from competing within a few miles of the employer's headquarters are often enforceable, agreements that prohibit an employee from competing anywhere in the world are often (though not always) unenforceable. What is considered a "reasonable" geographic restriction varies from business to business. Again, legal advice that is tailored to your business, industry, and circumstances can be extremely valuable in determining the appropriate restricted territory.
Don't Use a One-Size-Fits-All Approach
A Non-Compete that is good for one business or industry could be ill ill-suited for another. Likewise, a Non-Compete that is crafted for use with a particular employee might be counter-productive if used with another. It is a mistake to use a one-size-fits-all approach with Non-Competes. Unfortunately, some neglect this principle and develop Non-Competes from agreements used in other industries, or from something they find on the Internet. Such a one-size-fits-all approach risks creating a Non-Compete that is not well adapted to the specific needs of your business. Such an agreement might have a geographic or durational restriction that is unsuited to your industry, rendering it unenforceable. Additionally, a Non-Compete that is enforceable in one state might be unenforceable under the laws of another state. For these reasons (and numerous others), a proper Non-Compete should include a specific consideration of your business' needs and circumstances.
Consider a Non-Compete Before You Buy a Business
Sometimes an acquirer purchases a business without securing a Non-Compete from the selling company's owners or key personnel, only to find it's competing with the same people shortly after the acquisition. If the sellers of a business possess valuable customer relationships, know-how, or skills, a purchaser should consider the need for a Non-Compete from the owners and key personnel.
Know whether you can Transfer the Non-Compete
A common mistake that surfaces when a business is sold is the failure to include an assignment provision in the Non-Compete. Basically, some jurisdictions do not permit the seller of a business' assets to transfer its Non-Competes to the purchaser unless the employee consents to the assignment. This means that the purchaser of a business' assets may not be able to enforce its Non-Competes without the employees' consent. In order to avoid such situation, a Non-Compete should include a provision that allows the employer to assign the agreement to a purchaser of the business.
Include a Governing Law Provision
It is critical that a Non-Compete addresses the issue of which jurisdiction's laws will govern the agreement. An agreement that is enforceable in one state may not be enforceable in another. Likewise, a remedy for a violation of a Non-Compete may be a legal remedy in one jurisdiction but forbidden in another. This raises significant issues for companies that are engaged in business in multiple states. This is another reason why a one-size-fits-all approach to Non-Competes could harm your business. It is essential to ensure that your Non-Competes address the complex issues that arise from the various (often conflicting) state laws governing such agreements. This is another area where legal advice can be invaluable if it is tailored to your business' needs.
Update Your Non-Compete Periodically
The circumstances of your business and the laws governing Non-Competes change from time-to-time. If these critical agreements are not updated or reviewed periodically, they risk becoming irrelevant to a business' changing needs. Many things change for a business, including its essential employees, its key customers, and the information or techniques that it wants to keep confidential - this means that its Non-Competes need to change from time-to-time too.
Remember it's not a Cure-All
Just because you have a Non-Compete Agreement, it doesn't mean that your problems are solved. While Non-Competes can be very valuable, they are not a cure-all. It is a mistake to think that such an agreement is the only thing that is required to retain valuable employees or protect your business' confidential information. Employees can always choose to defy a Non-Compete and risk the legal consequences. A business' confidential information can still be secreted away by an employee in violation of a Non-Compete. Non-Competes can make such actions more difficult, and the consequences more severe, but they rarely make such occurrences impossible. The reality is that retaining valuable employees and customers and protecting a business' confidential information is a multi-faceted effort. As such, it is important not to think of a Non-Compete as a silver bullet or cure-all, but rather as one more tool in the toolbox. Such a tool, when used properly, can be of tremendous value to a business.
Make Sure You Have a Non-Compete
Perhaps the most common mistake of all is to not have a Non-Compete when you need one. Many businesses that could benefit from obtaining Non-Competes from their employees fail to do so. There are a variety of reasons this occurs. Sometimes the business' owners or managers think they're too busy to obtain such an agreement. Other times, employers overestimate the loyalty of their employees. There are also instances where employers fail to appreciate the value of protecting their business' confidential information and customers from potential competitors. Perhaps one of the biggest reasons for this neglect is that Non-Competes raise the prospect of losing valuable employees, which is something that many would prefer not to think about. Whatever the reason, it is vital to consider whether a Non-Compete could help to protect your business' customers and confidential information from unfair competition.
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