THE ENFORCEABILITY OF RESTRICTIVE COVENANT PROVISIONS IN EMPLOYMENT AGREEMENTS

ABA Forum on the Construction Industry – Divisions 6 and 11 Breakfast Meeting
September 11, 2008
THE ENFORCEABILITY OF RESTRICTIVE COVENANT PROVISIONS IN
EMPLOYMENT AGREEMENTS
By Robert J. Orelup
Drewry Simmons Vornehm, LLP
8888 Keystone Crossing, Suite 1200
Indianapolis, IN 46240
Ph: (317) 580-4848
rorelup@drewrysimmons.com
I.
Introduction
In order to maintain a successful business, employers strive to protect certain proprietary
information of the company and to protect themselves from unfair competition. Often times, the
increasingly popular means to achieve this end is to require employees to sign a non-compete or
restrictive covenant agreement.
The typical non-compete agreement is composed of a number of provisions, though there
are three provisions in particular which are important. First, the “non-competition” provision
acts to prevent an employee from engaging in activities that may, or in fact do, compete with the
employer, i.e., working for a competitor or opening a competing business. Then there is the
“non-solicitation” provision, which looks to restrict the employee from soliciting the company’s
employees and/or customers in an effort to end their relationship with the company and begin a
new relationship with the employee or his/her new company. Finally, there is a “non-disclosure”
or “confidentiality” provision. This provision looks to limit an employee’s unauthorized use of
certain confidential, proprietary or trade secret information.
Together, the aforementioned provisions, in concert with others, form the non-compete
agreement. Such an agreement is put in place in order to reduce the risk of economic harm to the
company by attempting to limit employees from seeking new employment with a direct
competitor or from disclosing certain trade secrets or other proprietary data of the company.
This article will look take a closer look at non-compete agreements, focusing on (1) the
general principles and when they may be enforced by courts, (2) the approaches used by courts
in reviewing, and (3) the defenses to their enforcement. Additionally, we have provided a brief
state-by-state survey of the law on the general principles regarding non-compete agreements.
II.
General Principles and Enforceability Considerations
The majority of non-compete agreements are entered into with very little, if any,
negotiation between the employer and the respective employee. Typically, such agreements are
signed at the beginning of employment. This is important to note for two reasons: first, it
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provides the employer with maximum bargaining power, and second, it is done at a time when
the employee is not concerning him or herself with the limitations and restrictions on future
employment in beginning a new job.
The ultimate result may be that when an employee chooses to leave the company, the
non-compete agreement may be an obstacle to future employment and it may outright prevent
that employee from doing certain work.
However, employers may be surprised to learn that these agreements which they rely on
for protection may be deemed unenforceable by courts. In fact, covenants not to compete have
generally been disfavored by most courts as against public policy, and thus heavily scrutinized.
This is not to say, though, that a particular non-compete agreement will not be upheld.
Rather, employers just need to be aware that there are certain intricacies and nuances to consider
in the drafting of such an agreement. To start, it is important to note in drafting such agreement
that unfortunately there is no uniform “one-size-fits-all” agreement, wherein the same limitations
and restrictions apply equally to all employees in all situations. The laws governing noncompete agreement vary from state to state. Each agreement should be evaluated individually,
paying particularly close attention to circumstances of the businesses, the employees involved,
and the laws of the state interpreting and enforcing the agreement.
Beyond that, it is also critical that an employer, and the non-compete agreement itself, be
“reasonable” and take into account the timing of entering into the agreement and the
consideration therefor, the length of time by which the agreement applies to the employee, the
distance from the company for work that is restricted, and the scope of activity that the employer
is trying to protect.
To put it more succinctly, courts in most states will enforce a non-compete agreement
only if they are: (1) ancillary to an otherwise valid agreement or relationship (i.e., employment);
(2) necessary to protect a legitimate interest of the employer (i.e., a trade secret, confidential
information or specialized training); and (3) reasonably limited in both temporal and geographic
scope.
A.
Reasonableness
With regard to whether a non-compete agreement is reasonable, and thus one step closer
to being valid, courts will look to see if the employer has a legitimate business interest in
protecting the time, investment, and other resources which they have invested in employees.
However, the interest must be balanced against the employee’s right to pursue work elsewhere.
In analyzing such agreements, it is important that the employer does not unduly limit an
employee’s other work opportunities. Because of the general disfavor against restricting trade,
the standard applied by courts is that the employer bears the burden of proving that the
agreement is narrowly tailored to protect its legitimate business interests so as to avoid
forbidding an employee from working for another company in a way that is not competitive.
Any ambiguities in the contract will be construed in favor of the employee.
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B.
Independent Consideration
Many courts hold that a non-compete agreement is valid if entered into at any time after
an employment relationship begins. The employment acts as the consideration. Some courts, on
the other hand, will not enforce the same unless the employee receives independent
consideration. In other words, the employee must receive something of value, other than
continued employment, in exchange for signing the agreement. For example, where a noncompete agreement is entered into after an employee’s initial hire date, that agreement must be
supported by a bona fide employment benefit, i.e., a promotion, a raise, stock options, etc.
Without such consideration, some courts may deem an employer’s promise of continued at-will
employment as illusory and therefore insufficient consideration.
C.
Duration
In addition to being reasonable and providing consideration, a non-compete agreement
must call for an employment restriction for a limited time. The duration of the agreement will be
treated on a case-by-case basis, but courts may look at factors such as the length of time it may
take an employer to train another employee to take over the position being vacated. In general,
agreements for one or two years in length will be valid, and those extending beyond that time
period will be scrutinized more closely.
D.
Geographic Scope
There is also a limitation as to distance. Non-compete agreements must be reasonable in
its geographic scope. For instance, if an employer has a particular market area, courts may
refuse to enforce agreements that extend beyond that market. With today’s global economy, this
factor is somewhat less significant than it has been in the past. Nevertheless, it is still carefully
scrutinized by court and often used as the basis to challenge a non-compete agreement’s
enforceability by employees. Therefore, as with the other restrictions (duration, activity), I
would encourage employers to “narrowly-tailor” the scope of these factors to meet its protective
needs and also ensure the greatest likelihood of enforcement by courts.
E.
Activity
Another reasonableness factor that is sometimes applied by courts is with regard to the
scope of “activity” restriction. Courts may find a non-compete overly broad if it does not take
into account the specific services provided by the employee to his former employer. Thus, a
non-compete agreement that attempts to preclude an employee from working in a business area
that he was never associated with at his former employment can be deemed too restrictive and
unenforceable. As such, it is important for employers to draft non-competes so they are specific
as to the types of activity being restricted. See Gleeson v. Preferred Sourcing LLC, 883 N.E.2d
164 (Ind. Ct. App. 2008).
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III.
Judicial Approaches to Reviewing Non-Compete Agreements
While reasonableness, independent consideration, duration and distance provide
guidelines to courts in determining the validity of non-compete agreements, they are only part of
the process. Different states have adopted different judicial approaches for reviewing and
enforcing covenants not to compete.
Some states have adopted a “reasonable modification” approach (i.e., Illinois, Florida
and Pennsylvania). Under this theory, courts may “re-write” an agreement that is found to be
overbroad. In so doing, the court is able to make a determination on the particular facts at issue
and can reasonably limit the restrictions.
While the reasonable modification approach works for some, other states do not want to
rewrite overbroad agreements entirely. Rather, these courts follow the “blue-pencil” rule (i.e.,
Indiana, Ohio, Arizona and Missouri). Under this theory, courts may simply strike from the
agreement the provisions which are overbroad and enforce everything else. Of course, the
remaining agreement must then be reasonably limited after the overbroad provisions have been
removed.
Still other states follow a strict “no-modification” approach (i.e., Georgia, Nebraska and
Wisconsin). This is essentially an all-or-nothing rule which prohibits the court from doing either
of the above. The court may not rewrite overbroad provisions as is done with the reasonable
modification approach, nor may it strike the provisions and enforce the remainder as is the case
with the blue-pencil rule. Under this theory, if the agreement, as it is written, is unreasonable,
then the court will not enforce it at all.
Finally, there are a handful of states which severely limit the types of non-compete
agreements that employers may enforce, or simply prohibit the enforcement of non-compete
agreements altogether as a matter of public policy (i.e., California and North Dakota).
IV.
Defenses to Enforcing Non-Compete Agreements
Keeping the general principles and guidelines for enforcement in mind, it is also
important that employers are aware of other ways an employee may attempt to defeat a noncompete agreement. Beyond the reasonableness of the agreement, there may be other successful
defenses, such as prior material breach, unclean hands, termination without cause, lack of
consideration, or waiver.
A.
Prior Material Breach
First, an employee may be able to attack the enforceability of a non-compete agreement
where an employer has breached the agreement. Typically, if the employer is the first to violate
the terms of the agreement, he cannot later seek to enforce the benefits of that agreement. The
key component of this defense is whether the prior breach of the agreement was material, i.e. the
employer unilaterally changed the terms and conditions of employment contrary to the
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employment agreement. However, the employer may have a counterargument, in spite of the
prior material breach, where the employee does not complain of such breach for an extended
period of time. At that point, the court may consider the employee’s defense waived.
1.
“No-Defense” Provision
Also, another supplemental way to increase the likelihood of a successful enforcement of
a non-compete agreement even with a prior breach by the employer is to have a “no-defense”
provision in the agreement. Such a provision explicitly states that any claim or cause of action
by employee against the employer based under the agreement or otherwise, would not constitute
a defense to the employer’s ability to enforce the non-compete agreement. See Central Indiana
Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008), which cited to other jurisdictions.
B.
Unclean Hands
Even if the employee is unsuccessful with the defense of prior material breach, he or she
may still have the defense of unclean hands. Courts follow the adage that for one to seek equity,
he must do equity. Therefore, a court may not aid a party who resorts to unjust or unfair
conduct.
C.
Termination Without Cause
Depending on the particular court or jurisdiction, an employee may also be able to defeat
the non-compete agreement on grounds that he or she was terminated by the employer without
cause. Generally, in these states, where an employee has been discharged without cause, the
employer will not be entitled to the relief of enforcing the non-compete agreement. This defense
also works in conjunction with the doctrine of unclean hands.
D.
Lack of Consideration
As mentioned previously, some courts may find that the non-compete agreement lacked
consideration. Once again, it is important for an employer to determine which theory the courts
of their respective state follow. Most states hold that continued employment is sufficient
consideration. However, other states require additional independent consideration beyond mere
employment, which may be seen as illusory. Moreover, some courts, such as those in Illinois,
may consider the length of employment following execution of the non-compete agreement to
determine with the consideration was indeed “illusory.” See Lawrence & Allen, Inc., v.
Cambridge Human Resources Group, Inc., 685 N.E.2d 434, 442 (Ill. App. 1997). Still others,
like Texas, may require a very specific type of consideration when entering into non-compete
agreements. Regardless of theory, the employer should be aware of the availability of the
defense of lack of consideration and proactively address these independent consideration
requirements up front when drafting and entering into non-compete agreement with employees.
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E.
Selective Enforcement
Finally, employees may argue that the employer has waived the enforcement of a noncompete agreement by failing to enforce a similar agreement in the past against other former
employees. This defense is very fact specific, as it will depend on the number of past instances,
how recent those instances occurred, and whether the other former employees had a similar job
as the employee at issue. Also of importance is the notion that this defense may be directly
related to the defense that the employer has no legitimate business interest to protect.
V.
Choice of Law
The question may arise as to whether there indeed should be a concern about other states’
non-compete laws given that a choice of law provision could be included in an agreement.
Granted, while choice of law provisions are often, and should be, included in non-compete
agreements, it should be noted that such provision may not be enforced by a particular state’s
court of law.
Many jurisdictions follow the Restatement (Second) of Conflicts § 187 in deciding
whether to enforce an agreement’s choice of law provision. Section 187 states that the choice of
law set forth in the agreement will govern the parties’ contractual relationship and duties unless
(a) the chosen state has no substantial relationship to the parties or the transaction and there is no
other reasonable basis for the parties’ choice; or (b) application of the law of the chosen state
would be contrary to a fundamental policy of a state having a greater material interest in the
issue than the chosen state and such state would be the state of applicable law absent the choice
made by the parties. See Schulke v. Radio Products, Ltd. v. Midwestern Broadcasting, 453
N.E.2d 683 (Ohio 1983); Javis v. Ashland Oil Co., 478 N.E.2d 786 (Ohio 1985).
The second factor noted above in the Restatement can be particularly applicable in a noncompete context where the court of the state in which the agreement is sought to be enforced
determines that the terms of the agreement are unreasonable and hence unenforceable based on
public policy reasons. In the case of Keener v. Convergys Corporation, the Eleventh Circuit did
just that, and applied Georgia law to the non-compete agreement at issue, despite a provision
providing that Ohio law would govern. 342 F.3d 1264 (11th Cir. 2003). Therefore, the lesson to
be learned is that an employer should not use boilerplate non-compete agreements that give little
consideration to where a particular employee is located or the state or jurisdiction where it may
anticipate future competitive problems.
VI.
Conclusion
Non-compete agreements can be a very useful tool for companies to limit its employees
from working for a competitor or from disclosing trade secrets or other proprietary data.
However, it is crucial that employers take note of the considerations in drafting such agreements.
Although generally disfavored at law, non-compete agreements are enforceable where there is a
valid employment agreement or relationship, there is a legitimate business interest the employer
is trying to protect, and the agreement is reasonable in its time, activity and geographic scope
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restrictions (Note: The more “narrowly-tailored” the agreement is as to its restrictions and
limitations, the better likelihood it has of being enforced by courts).
Courts have sought to protect an employee’s right to secure gainful employment, but they
have also sought to protect the company from unfair competition arising from the employment
relationship. Each non-compete agreement must be viewed on its own merits, and courts will
make a determination weighing the facts and circumstances of the parties involved. It is
important that employers and in-house counsel take note of the laws of their state to determine
the enforceability of non-compete agreements, the judicial approach in making it reasonable, and
defenses that may be available to employees. As mentioned herein, and illustrated by the
following state-by-state survey, each state’s laws regarding non-competes may vary greatly, thus
forcing multi-state employers and in-house counsel to customize such agreements by carefully
evaluating the enforceability of non-compete agreements, the judicial approach in making it
reasonable, and defenses that may be available to employees in each such jurisdiction.
STATE-BY-STATE SURVEY
OF NON-COMPETE AGREEMENTS1
Alabama. Alabama law disfavors contracts restraining employment, but courts will enforce
covenant not to compete if employer has protectable interest, restriction is reasonably related to
that interest, restriction is reasonable in time and place, and restriction imposes no undue
hardship on employee. Keystone Automotive Industries, Inc. v. Stevens, 854 So.2d 113 (Ala.
Civ. App. 2003); Ala. Code §8-1-1.
Alaska. The Alaska Supreme Court has held that an otherwise unreasonable restriction in a
competition covenant will not automatically cause the covenant to be unenforceable, if such
unreasonable term can be reasonably modified to render the covenant enforceable and, the court
should seek to do so, unless it should find that the covenant was drafted in bad faith. Data
Management, Inc. v. Greene, 757 P.2d 62 (Alaska 1988).
Arizona. Arizona courts, as a general rule, have held that a contract restricting the right of an
employee to compete with an employer after termination of employment which is not
unreasonable in its limitations should be upheld in the absence of a showing of bad faith or of
contravening public policy. Fearnow v. Ridenour, Swenson, Cleere & Evans, P.C., 138 P.3d 723
(Ariz. 2006). The reasonableness determination depends on the whole subject matter of the
contract, the kind and character of the business, its location, the purpose to be accomplished by
the restriction, and all the circumstances which show the intention of the parties. Id.
1
Please note that this brief state-by-state survey analysis looks at the general principles of enforcement and does not
typically address the state’s view as to judicial approaches to enforcement and defenses (ie., consideration), which
often vary from state to state.
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Arkansas. Arkansas courts have held that, although a covenant not to compete is valid when
founded on a valuable consideration, such agreements are not favored in the law and will be
enforced only if the restraint imposed is reasonable as between the parties and not injurious to
the public by reason of its effect upon trade. Office Machines, Inc. v. Mitchell, 234 S.W.3d 906
(Ark. App. 2006). For a covenant not to compete to be enforced, three requirements must be
met: (1) the employer must have a valid interest to protect; (2) the geographical restriction must
not be overly broad; and (3) a reasonable time limit must be imposed. Statco Wireless, LLC v.
Southwestern Bell Wireless, LLC, 95 S.W.3d 13 (Ark. App. 2003).
California.
In California, covenants not to compete are generally void, and the
statutory rule against such covenants is not subject to a “narrow-restraint” exception, as would
permit contracts in restraint of trade that do not entirely bar an person from practicing his or her
profession, trade, or business. Edwards v. Arthur Andersen LLP, 189 P.3d 285 (Cal. 2008);
Cal. Bus. & Prof. Code § 16600 et seq. “California courts have consistently declared [§ 16600 et
seq.] an expression of public policy to ensure that citizens shall retain the right to pursue any
lawful employment and enterprise of their choice.” Metro Traffic Control, Inc. v. Shadow
Traffic Network, 27 Cal. Rptr. 2d 573 (Cal. App. 1994).
Colorado. Colorado public policy generally does not favor covenants not to compete, and even
if the covenant is contained within one of the contracts authorized by statute, it still must be
reasonable as to its territorial reach and its duration. Keller Corp. v. Kelley, 187 P.3d 1133 (Colo.
App. 2008); Colo. Rev. Stat. §8-2-113.
Delaware. Delaware courts have tended to enforce covenants not to compete in employment
contracts provided such covenants are reasonable with respect to geographical scope and
duration and are deemed necessary to protect a legitimate business interest of the former
employer. See Pollard v. Autotote, Ltd., 852 F.2d 67 (3rd Cir. 1988).
District of Columbia. District of Columbia courts hold that a promise to refrain from
competition that imposes a restraint that is ancillary to an otherwise valid transaction or
relationship is an unreasonable restraint of trade if: (1) the restraint is greater than is needed to
protect the promisee’s legitimate interest, or (2) the promisee’s need is outweighed by the
hardship to the promisor and the likely injury to the public. Deutsch v. Barsky, 795 A.2d 669
(D.C. 2002).
Florida. In determining whether non-competition agreement is enforceable, employee’s interest
in freely offering his or her industry, skills, and talents through marketplace competition must be
balanced against the equally important rights to contract freely and to enforce freely bargained
for contractual duties. Globe Data Systems v. Johnson, 745 So.2d 1101 (Fla. App. 1999); Fla.
Stat. Ann. § 542.33.
Georgia. Covenants against competition in employment agreements are in partial restraint of
trade and are thus upheld only when strictly limited: the restrictions must be reasonable,
considering the business interests of the employer needing protection and the effect of the
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restrictions on the employee. Avion Systems, Inc. v. Thompson, 2008 WL 2854300 (Ga. App.
2008).
Hawaii. Courts will find a non-competition provision unreasonable if it is greater than required
for the protection of the person for whose benefit it is imposed; it imposes undue hardship on the
person restricted; or its benefit to the covenantee is outweighed by injury to the public. 7's
Enterprises, Inc. v. Del Rosario, 143 P.3d 23 (Haw. 2006). Additionally, Hawaii statutes
provide that covenants not to compete in employment contracts are enforceable if such covenants
are reasonable with respect to duration, geographical scope and protect the legitimate business
interest of the former employee and, if by such enforcement of the covenant, the employee does
not suffer an unreasonable and undue hardship. Haw. Rev. Stat. § 480-4(c)(4).
Idaho. Idaho courts hold that covenants not to compete are valid when they are reasonable as
applied to the employer, the employee, and the general public. Bybee v. Isaac, 178 P.3d 616
(Idaho 2008). In the employment context, non-compete covenants should expressly limit the
scope of activities the employee is prohibited from performing. Id.
Illinois. Illinois courts hold that relevant considerations in determining the enforceability of a
post-employment restrictive covenant not to compete include the hardship caused to the
employee, the effect upon the general public, and the scope of the restrictions; this requires the
courts to consider the propriety of the restrictions in terms of their length in time, their territorial
scope, and the activities that they restrict. Cambridge Engineering, Inc. v. Mercury Partners 90
BI, Inc., 879 N.E.2d 512 (Ill. App. 2007).
Indiana. Indiana courts generally will enforce covenants not to compete in employment
contracts as long as such covenants are reasonable with respect to time, activity and geographic
area restrictions and protect a legitimate business interest of the former employer, and an
employer’s continuation of the employee’s employment and the payment of wages to the
employee provides sufficient consideration to support the employee’s noncompetition covenant
to the employees. Gleeson v, Preferred Sourcing LLC, 883 N.E.2d 164 (Ind. App. 2008);
Central Indiana Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).
Iowa. Under Iowa law, there is no public policy or rule of law which condemns or holds in
disfavor a fair and reasonable non-compete agreement; such a contract is entitled to the same
reasonable construction accorded to business obligations in general. Thrasher v. Grip-Tite Mfg.
Co., Inc., 535 F.Supp.2d 937 (S.D. Iowa 2008). The court held that there are three factors to
consider in determining the validity of a non-compete agreement: (1) whether the restriction is
reasonably necessary for the protection of the employer’s business, (2) whether it is
unreasonably restrictive of the employee’s rights, and (3) whether it is prejudicial to the public
interest. Id.
Kansas. Kansas courts have held that in determining the reasonableness of a covenant not to
compete, four factors are generally considered: (1) whether the covenant protects a legitimate
business interest of the employer, (2) whether the covenant creates an undue burden on the
employee, (3) whether the covenant is injurious to the public welfare, and (4) whether the time
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and territorial limitations contained in the covenant are reasonable. Wichita Clinic, P.A. v. Louis,
185 P.3d 946 (Kan. App. 2008).
Kentucky. Kentucky courts generally enforce covenants not to compete in employment
contracts against former employees if the restrictive language is reasonable with respect to
duration and geographical scope and is necessary to protect the legitimate business interests of
the employer and, provided further, such covenant does not impose an undue hardship on the
former employee or the general public. See Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340 (Ky.
1986).
Louisiana. Louisiana has a longstanding public policy to prohibit or severely restrict noncompetition provisions in employment agreements which curtail an employee’s right to earn his
livelihood. Bell v. Rimkus Consulting Group, Inc. of Louisiana, 983 So.2d 927 (La. App. 2008).
An employment agreement limiting competition must strictly comply with the statutory
requirements. Id.; La. Rev. Stat. § 23:921.
Maine. Under Maine law, an employer can prevent a former employee from using his trade or
business secrets, and other confidential knowledge gained in the course of the employment, and
from enticing away old customer, but to be enforceable, such a restrictive covenant must be
reasonable and must impose no undue hardship upon the employee and be no wider in its scope
than is reasonably necessary for the protection of the business of the employer. Bernier v.
Merrill Air Engineers, 770 A.2d 97 (Me. 2001).
Maryland. When a covenant not to compete is reasonable on its face as to both time and space,
the factors for determining the enforceability of the covenant based upon the facts and
circumstances of the case are: (1) whether the person sought to be enjoined is an unskilled
worker whose services are not unique; (2) whether the covenant is necessary to prevent the
solicitation of customers or the use of trade secrets, assigned routes, or private customer lists; (3)
whether there is any exploitation of personal contacts between the employee and customer; and
(4) whether enforcement of the clause would impose an undue hardship on the employee or
disregard the interests of the public. Ecology Services, Inc. v. Clym Environmental Services,
LLC, 952 A.2d 999 (Md. App. 2008).
Massachusetts. In Massachusetts, covenants not to compete are valid if they are reasonable in
light of the facts in each case, and courts will only enforce such covenants where it is necessary
to protect a legitimate business interest, reasonably limited in time and space, and consonant with
the public interest. Boulanger v. Dunkin' Donuts Inc., 815 N.E.2d 572 (Mass. 2004).
Michigan. As a general matter, courts presume the legality, validity, and enforceability of
contracts, but noncompetition agreements between employers and employees are disfavored as
restraints on commerce and are only enforceable to the extent they are reasonable. Coates v.
Bastian Brothers, Inc., 741 N.W.2d 539 (Mich. App. 2007); Mich. Comp. Laws Ann. §
445.774a(1).
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Minnesota. In Minnesota, employment non-compete agreements are looked upon with disfavor,
cautiously considered, and carefully scrutinized, but courts will enforce them if they serve a
legitimate employer interest and are not broader than necessary to protect this interest. Kallok v.
Medtronic, Inc., 573 N.W.2d 356 (Minn. 1998). In determining whether to enforce such
agreements, courts will balance the employer’s interest in protection from unfair competition
against the employee’s right to earn livelihood. Id.
Mississippi. Mississippi court swill only uphold a restrictive covenant in restraint of trade if it is
reasonable, and to determine the validity of such a covenant, the court will look to the respective
rights of the employer, the employee, and the public. Cain v. Cain, 967 So.2d 654 (Miss. App.
2007).
Missouri. Missouri courts typically will enforce non-compete agreements so long as they are
reasonable, and in practical terms, a non-compete agreement is reasonable if it is no more
restrictive than is necessary to protect the legitimate interests of the employer. Healthcare
Services of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604 (Mo. 2006).
Montana. Montana courts hold that contracts in restraint of trade are disfavored, but to be
upheld as reasonable, a covenant not to compete must meet three requirements: (1) it must be
partial or restricted in its operation in respect either to time or place; (2) it must be on some good
consideration; and (3) it must be reasonable, that is, it should afford only a fair protection to the
interests of the party in whose favor it is made, and must not be so large in its operation as to
interfere with the interests of the public. Access Organics, Inc. v. Hernandez, 175 P.3d 899
(Mont. 2008); Mont. Code Ann. § 28-2-703.
Nebraska. Under Nebraska law, to determine whether a covenant not to compete is valid, a
court must determine whether a restriction is reasonable in the sense that it is not injurious to the
public, that it is not greater than is reasonably necessary to protect the employer in some
legitimate interest, and that it is not unduly harsh and oppressive on the employee. Thrasher v.
Grip-Tite Mfg. Co., Inc., 535 F.Supp.2d 937 (S.D. Iowa 2008). Further, a non-compete clause
which is aimed at preventing a former employee from unfairly appropriating the customer
goodwill which properly belongs to the employer is not valid unless it restricts the former
employee from working for or soliciting the former employer’s clients or accounts with whom
the former employee actually did business and has personal contact. Id. If the challenged noncompete provision fails to meet this standard, a Nebraska court is not empowered to modify or
reform the non-compete clause to make it enforceable, apparently despite the specific
incorporation of a reformation provision in the agreement of the parties. Id.
Nevada. Nevada courts generally hold that covenants not to compete are enforceable only if
they are reasonable in duration and geographical and territorial scope and are necessary to
protect the legitimate business and operational needs of the employer. See Sheehan & Sheehan v.
Nelson Malley and Co., 117 P.3d 219 (Nev. 2005).
New Hampshire. New Hampshire courts hold that covenants that restrict trade or competition
are valid and enforceable if the restraint is reasonable, given the particular circumstances of the
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ABA Forum on the Construction Industry – Divisions 6 and 11 Breakfast Meeting
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case. ACAS Acquisitions (Precitech) Inc. v. Hobert, 923 A.2d 1076 (N.H. 2007). To determine
whether a restrictive covenant ancillary to an employment contract is reasonable, the Supreme
Court engages in a three-part inquiry to determine: (1) whether the restriction is greater than
necessary to protect the legitimate interests of the employer; (2) whether the restriction imposes
an undue hardship upon the employee; and (3) whether the restriction is injurious to the public
interest. Id.
New Jersey. New Jersey courts have held that the test for determining whether a noncompete
agreement is unreasonable and thus unenforceable requires the court to determine whether (1)
the restrictive covenant was necessary to protect the employer’s legitimate interests in
enforcement, (2) whether it would cause undue hardship to the employee, and (3) whether it
would be injurious to the public. The Community Hosp. Group, Inc. v. More, 869 A.2d 884 (N.J.
2005). Depending upon the results of this analysis, the restrictive covenant may be disregarded
or given complete or partial enforcement to the extent reasonable under the circumstances.
New Mexico. New Mexico courts generally will enforce covenants not to compete in
employment contracts if such covenants are reasonable in duration and geographical scope. See
Danzer v. Professional Insurers, 679 P.2d 1276 (N.M. 1984).
New York. New York courts have held that covenants not to compete in employment contracts
will be enforced if reasonably limited as to time, geographic area, and scope, are necessary to
protect the employer's interests, not harmful to the public, and not unduly burdensome. Ricca v.
Ouzounian, 859 N.Y.S.2d 238 (N.Y. App. 2008).
North Carolina. North Carolina courts hold that a covenant-not-to-compete, to be valid and
enforceable, must be: (1) in writing; (2) made a part of the employment contract; (3) based on
valuable consideration; (4) reasonable as to time and territory; and (5) designed to protect a
legitimate business interest of the employer. Kinesis Advertising, Inc. v. Hill, 652 S.E.2d 284
(N.C. App. 2007).
North Dakota. North Dakota law forbids an agreement that restrains or attempts to restrain the
exercise of a lawful profession, trade, or business unless such contractual restriction is made in
connection with the sale of a business or the dissolution of a partnership. N.D. Cent. Code §908-06.
Ohio. Ohio courts have held that a covenant not to compete is reasonable if the restraint is no
greater than is required for the protection of the employer, does not impose undue hardship on
the employee, and is not injurious to the public. Brakefire, Inc. v. Overbeck, 878 N.E.2d 84
(Ohio. Com. Pl. 2007). Among factors to be considered, regarding reasonableness of covenant
not to compete, are: (1) absence or presence of limitations as to time and space; (2) whether
employee represents sole contact with customer; (3) whether employee is possessed with
confidential information or trade secrets; (4) whether covenant seeks to eliminate unfair
competition or merely seeks to eliminate ordinary competition; (5) whether covenant seeks to
stifle inherent skill and experience of employee; (6) whether benefit to employer is
disproportional to detriment to employee; (7) whether covenant operates as bar to employee’s
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ABA Forum on the Construction Industry – Divisions 6 and 11 Breakfast Meeting
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sole means of support; (8) whether employee’s talent which employer seeks to suppress was
developed during period of employment; and (9) whether forbidden employment is merely
incidental to main employment. Id.
Oklahoma. A restraint on the free exercise of a profession, trade, or business is deemed
reasonable only if it: (1) is no greater than is required for the employer’s protection from unfair
competition; (2) does not impose undue hardship on the employee; and (3) is not injurious to the
public. Loewen Group Acquisition Corp. v. Matthews, 12 P.3d 977 (Okla. Civ. App. 2000);
Okla. Stat. Ann. §15:217.
Oregon. Oregon law makes a noncompetition agreement between an employer and employee
unenforceable unless such a restrictive covenant is agreed to at the inception of the employment
relationship. Or. Rev. Stat. §653.295. Three things are essential to the validity of a contract in
restraint of trade: (1) it must be partial or restricted in its operation in respect either to time or
place; (2) it must come on good consideration; and (3) it must be reasonable, that is, it should
afford only a fair protection to the interests of the party in whose favor it is made, and must not
be so large in its operation as to interfere with the interests of the public. Volt Services Group,
Div. of Volt Management Corp. v. Adecco Employment Services, Inc., 35 P.3d 329 (Or. App.
2001).
Pennsylvania. Pennsylvania courts have held that a post-employment covenant that merely
seeks to eliminate competition per se to give the employer an economic advantage is generally
not enforceable. WellSpan Health v. Bayliss, 869 A.2d 990 (Pa. Super. 2005). If the threshold
requirement of a protectable business interest is met, the next step in analysis of a noncompetition covenant is to apply the balancing test: (1) the court balances the employer’s
protectable business interest against the employee’s interest in earning a living; and (2) then, the
court balances the employer and employee interests with the interests of the public. Id.
Rhode Island. Rhode Island courts will uphold and enforce noncompete provisions if the party
seeking to enforce the noncompetition clause shows that the provision is ancillary to an
otherwise valid transaction or relationship, and that the contract is reasonable and does not
extend beyond what is apparently necessary for the protection of those in whose favor it runs.
Cranston Print Works Co. v. Pothier, 848 A.2d 213 (R.I. 2004).
South Carolina. South Carolina courts have held that a covenant not to compete is enforceable
if it is not detrimental to the public interest, is reasonably limited as to time and territory, and is
supported by valuable consideration. Poole v. Incentives Unlimited, Inc., 548 S.E.2d 207 (S.C.
2001).
South Dakota. Although the South Dakota statute governing covenants not to compete in
employment contracts generally allows employers and employees to make their agreements
without making a further showing of reasonableness, for those employees who are fired through
no fault of their own, the trial court must balance the competing interests of the former
employee, the employer, and the public to determine whether the noncompete agreement is
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ABA Forum on the Construction Industry – Divisions 6 and 11 Breakfast Meeting
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reasonable. Hot Stuff Foods, LLC v. Mean Gene's Enterprises, Inc., 468 F.Supp.2d 1078
(D.S.D.S.Div.,2006); S.D. Codified Laws § 53-9-11.
Tennessee. Tennessee courts have held that non-compete covenants are viewed as a restraint of
trade and, as such, are construed strictly in favor of the employee. Murfreesboro Medical Clinic,
P.A. v. Udom, 166 S.W.3d 674 (Tenn. 2005). Factors relevant to whether a non-compete
covenant is reasonable include: (1) the consideration supporting the covenant; (2) the threatened
danger to the employer in the absence of the covenant; (3) the economic hardship imposed on the
employee by the covenant; and (4) whether the covenant is inimical to the public interest.
Texas. Texas courts generally uphold covenants not to compete in employment agreements
whenever such agreements are reasonable in duration and geographical scope and necessary to
protect the employer’s legitimate business interests. See Light v. Centel Cellular Co., 883
S.W.2d 642 (Tex. 1994). However, there are several hurdles in overcoming reasonableness
which employers must strictly comply with, namely that (1) the agreement is ancillary to or part
of an otherwise enforceable agreement at the time the agreement is made, and (2) the agreement
must be reasonably limited as to time, geographical area and scope so that they do not impose a
greater restraint than is necessary to protect a legitimate business interest of the employer. Id.
Further, the only consideration that an employer may give to support a non-compete agreement
is the confidential information the employee needs to do his or her job. See Strickland v.
Medtronic, Inc., 97 S.W.3d 835 (Tex. App. 2003).
Utah. Utah courts generally will uphold a covenant not to compete in an employment agreement
if reasonable in duration and geographical area and necessary to protect the business interest of
the former employer. See Systems Concepts, Inc. v. Dixon, 669 P.2d 421 (Utah 1983).
Vermont. Vermont courts will enforce non-competition agreements unless the agreement is
found to be contrary to public policy, unnecessary for protection of the employer, or
unnecessarily restrictive of the rights of the employee, with due regard being given to the subject
matter of the contract and the circumstances and conditions under which it is to be performed.
Systems and Software, Inc. v. Barnes, 886 A.2d 762 (Vt. 2005).
Virginia. Virginia courts hold that a covenant not to compete between an employer and an
employee will be enforced if the covenant is narrowly written to protect the employer’s
legitimate business interest, is not unduly burdensome on the employee’s ability to earn a living,
and does not violate public policy. Parikh v. Family Care Center, Inc., 641 S.E.2d 98 (Va.
2007).
Washington. Washington courts generally uphold covenants not to compete in employment
agreements if they are reasonable in duration and geographical scope and are necessary to protect
the legitimate business interests of the employer. See Labriola v. Pollard Group, Inc., 100 P.3d
791 (Wash. 2004).
West Virginia. West Virginia courts hold that an employee covenant not to compete is
unreasonable on its face if its time or area limitations are excessively broad, or where the
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ABA Forum on the Construction Industry – Divisions 6 and 11 Breakfast Meeting
September 11, 2008
covenant appears designed to intimidate employees rather than to protect the employer’s
business. Huntington Eye Associates, Inc. v. LoCascio, 553 S.E.2d 773 (W.Va. 2001).
Wisconsin. Wisconsin statutes express a strong public policy against the enforcement of
unreasonable trade restraints on employees, but courts will enforce such restrictive covenants if
they: (1) are necessary to protect the employer, (2) provide a reasonable time limit, (3) provide a
reasonable territorial limit, (4) are not harsh or oppressive to the employee, and (5) are not
contrary to public policy. H & R Block Eastern Enterprises, Inc. v. Swenson, 745 N.W.2d 421
(Wis. App. 2007); Wis. Stat. §103.465.
Wyoming. Wyoming courts hold that a valid and enforceable covenant not to compete requires
showing that covenant is: in writing; part of contract of employment; based on reasonable
consideration; reasonable in durational and geographical limitation; and not against public
policy. Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531 (Wyo. 1993).
Bob Orelup is a partner in the Indianapolis law firm of Drewry Simmons Vornehm, LLP, where
he practices in the areas of labor and employment law and construction law and litigation. Bob
would like to thank Chris Drewry, an associate at Drewry Simmons Vornehm, LLP, for his
invaluable assistance with this presentation. For more information or if you have additional
questions regarding this presentation, please feel free to contact Bob at (317) 580-4848 or
rorelup@drewrysimmons.com.
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