The most common legal question we are asked is whether our clients’ non-compete or non-solicitation agreements are enforceable. The answer is always fact-intensive and legally complicated due to the inconsistencies in which court apply law on restrictive covenants. The variables at issue are duration of the restriction, geographic scope, and specific restrictions. Often the first time an employee is looking at the non-competition agreement is years after they signed it at the outset of their employment. I have seen this situation play out so many times. Employees feel like they lack bargaining power and agree to one-sided language such as a non-compete or non-solicitation provision, only to deeply regret the decision later on. Most employees believe that the company will not enforce the agreement by attempting to restrict their future employment. Instead, employees find themselves being served with a “cease and desist” letter demanding they voluntarily resign their job. The majority of the times that this occurs, a compromise can be achieved with the former employer—usually by negotiating new terms that the employee can abide by that do not threaten the former employer’s legitimate competitive business interest. It is critical that you contact an employment law attorney if you have questions about your non-compete or other restrictive covenant obligations. Be sure to follow these cardinal rules:
- Obtain a consultation from an attorney at the beginning of your employment before you sign an employment agreement or agree to a restrictive covenant, such as a non-compete or non-solicitation.
- Before you leave your current employer, get a consultation on how to proceed safely under your current employment agreement.
- If you are threatened with legal action after you leave your employer, do not hesitate to find an employment law attorney. Your former employer can seek an ex parte temporary restraining order against you, meaning you will be prevented from working before you even get to tell your side of the story.