There are many misconceptions and assumptions regarding the use and effectiveness of non-compete agreements. This is not too surprising considering that judicial enforcement of these agreements is very fact-intensive and situation-specific. There are no bright-line rules to help business owners determine whether a noncompete agreement will be enforceable, so it can be challenging to craft one that will provide maximum protection without being vulnerable to a challenge in court.

Common Pitfalls with Non-compete Agreements

  1. Failing to properly identify what is actually being protected. One pitfall that business owners face is that they fail to put much, if any, time or effort into evaluating what legitimate business interest they are specifically trying to protect when asking their employees to sign a non-compete agreement. These agreements are often implemented for the simple reason that it seems like a good business practice from a human resources perspective. However, a deeper dive into the desired protections of these agreements is critical to ensure their effectiveness and enforceability.    
  1. Using a non-compete agreement when nonsolicitation is desired. Similarly, executives may assume that they need to use a non-compete agreement, when in reality they need a nonsolicitation agreement (restricting someone from taking customers, employees, etc.) or a confidentiality agreement (restricting someone from using trade secrets or other information). Business owners and managers should also remember that just because a non-compete agreement may have fit the company’s needs and business activities two or three years ago, this does not mean that such an agreement is still a good fit for the business today.

Issues to Consider when Requiring Employees or Contractors to Sign a Non-compete Agreement

If you want to add an another layer of protection to your business by implementing a non-compete agreement, there are a few questions you should ask as you get started:

  1. Is the obligation to sign the non-compete coupled with some type of valid consideration?
  2. Could the employee or contractor make a valid claim that you negotiated the non-compete in bad faith?
  3. Does your company have a legitimate business interest that the non-compete is attempting to protect?
  4. Is the duration and geographic limitation of the non-compete reasonable to protect the company’s legitimate business interests?
  5. Could the terms or conditions of the non-compete be viewed as being against public policy?

Options Available to Enforce a Non-compete Agreement

The enforceability of a non-compete can vary from state to state. This can be particularly problematic for larger companies with employees or contractors throughout the country. However, even California law, which generally invalidates non-compete agreements, recognizes the need to protect a company’s trade secrets and other confidential information. Typical enforcement options include a lawsuit for damages as well as injunctive relief from the court to immediately stop severe damages from violation of the non-compete agreement (often referred to as a temporary restraining order). 

Nonlegal Issues to  Consider

In determining whether non-compete agreements will be in the best interests of the company, business owners should consider how a non-compete agreement may affect employee morale or loyalty, both as a result of the required execution of the agreement and the enforcement of the agreement. Suing an employee who has quit or been fired might send the wrong message to current employees, even if the lawsuit is pursued for legitimate reasons. 

Schedule a meeting with Michael Malone to ensure that you are using the right document for your business protection needs and to navigate the applicable law in your local jurisdiction. We will help you craft a non-competition agreement that will be upheld by a court and protect the legitimate business interests that you have worked so hard to build. Call our office today to schedule a consultation.