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Non-Competition Agreement

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A non-competition agreement, also known as a restrictive covenant, limits individuals from competing against their current or former U.S. employer. It protects a company's trade secrets, proprietary information, and competitive advantage by restricting employees or certain business partners from engaging in certain competitive activities after leaving the company or terminating a business relationship. Let us learn more about non-competition agreements in this blog below.

What is a Non-Competition Agreement?

A non-competition agreement is a contract between an employer and an employee. In this type of legal contract, the employee agrees that they will not compete with the employer during their employment or after their employment ends. Non-competition agreements prevent employees from entering professions or markets that the employer considers to be in direct competition with their business.

Employers may also wish to create non-competition agreements to prevent former employees from revealing sensitive information or secrets about:

  • Clients
  • Customers
  • Formulas
  • Future projects
  • Ideas
  • Methods and practices
  • Operations
  • Public relations/marketing plans
  • Pricing
  • Salary
  • Strategy

You may also hear non-competition agreements referred to as:

Steps to Draft a Non-Competition Agreement

A non-competition agreement, also known as a non-compete clause or covenant not to compete, is a legal contract contrived to impede an individual (often an employee) from indulging in competitive activities that could jeopardize the interests of their current employer after absconding from the company. The strides implicated in forging and executing a non-competition agreement are as follows:

  1. Identify the Parties. The preliminary step entails spotlighting the parties implicated in the Non-Competition Agreement - the employer and the employee or contractor, with their full legal names and contact information clearly stated for future reference.
  2. Define the Scope. Delineate the activities or industries the employee is prohibited from embarking on during the non-compete period, ensuring comprehensive coverage while avoiding overly broad restrictions.
  3. Set the Duration. Ascertain the length of time the non-compete clause will persist after the employee departs from the company, aligning it with industry standards and the potential impact on the employee's career.
  4. Establish Geographic Limitations. Define the geographic area or region where the non-compete restrictions apply, taking into account the company's actual business reach and the employee's potential job opportunities.
  5. State Consideration. Ensure that the agreement encompasses "consideration," something of value bestowed upon the employee in exchange for their commitment to the non-compete terms, which can include monetary compensation or access to proprietary training.
  6. Protect Trade Secrets and Confidential Information. Embed clauses accentuating safeguarding the company's trade secrets, proprietary information, and client/customer lists, with clear guidelines on handling and returning confidential materials upon termination.
  7. Seek Legal Advice. Both parties should solicit legal counsel to ensure the agreement adheres to local laws and regulations, safeguarding their interests and avoiding legal complications.
  8. Negotiate and Sign the Agreement. Engage in negotiations to attain a mutually agreeable agreement, and once finalized, have both parties endorse the contract, signifying their commitment to its terms and conditions.
  9. Maintain Records. Maintain meticulous records of the endorsed agreement and any pertinent documentation about the employee's compliance during and after employment, ensuring a transparent and well-documented process for potential future disputes.
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Role of Legal Counsel in Non-Competition Agreements

Legal counsel plays an important role in non-competition agreements, legally binding contracts that restrict one party from engaging in certain competitive activities for a specified time and within a defined area after a business relationship ends. Here's a concise breakdown of their role, with additional information at each point:

  • Drafting and Reviewing Agreements: Counsel meticulously creates clear, legally sound non-competition agreements, ensuring that terms are precise and all-encompassing to safeguard the interests of their clients effectively.
  • Complying with Applicable Laws: They navigate complex regional laws and regulations to ensure that agreements adhere to local legal requirements and consider recent legal developments, minimizing potential risks and challenges.
  • Negotiating Terms: Counsel actively negotiates terms with precision, considering the scope, duration, geographical limitations, and compensation carefully. They strategically tailor agreements to align with client needs, balancing protection and flexibility.
  • Offering Customization: Legal counsel customizes agreements to the specific situation, whether it involves a business aiming to safeguard its trade secrets or an employee looking to preserve future career prospects. This customization ensures that the agreement addresses unique concerns.
  • Explaining Consequences: Counsel comprehensively explains to clients the potential limitations and legal obligations associated with the non-competition agreement, enabling clients to make fully informed decisions that align with their long-term goals.
  • Utilizing Legal Expertise: In disputes, counsel represents clients not only in negotiations but also in litigation, utilizing their legal expertise to advocate for the agreement's enforcement vigorously or, if necessary, its invalidation based on the client's strategic objectives.
  • Providing Alternative Measures: They offer strategic advice on alternative measures, such as the use of confidentiality agreements, intellectual property protections, or trade secret safeguards, to ensure comprehensive protection without solely relying on non-competition agreements.
  • Including Updates and Changes: Counsel actively recommends and oversees periodic reviews and revisions of agreements to keep them valid and enforceable. They particularly emphasize this in situations where changes in employment or business relationships occur.
  • Resolving Disputes: In pursuit of efficient conflict resolution, counsel explores alternative dispute resolution methods, such as mediation or arbitration, to facilitate quick and cost-effective resolutions, reducing the need for protracted court battles and potential damage to client relationships.

Who Can Sign a Non-Competition Agreement?

Employers may ask employees to sign non-competition agreements to keep their place in a market. Those asked to sign non-compete agreements can include:

  • Employees
  • Consultants
  • Contractors

A non-competition agreement typically prohibits an employee from becoming a competitor or working for a competitor for a certain duration of time. Independent contractors and consultants may also be subject to a non-compete clause in their employment contract that seeks to avoid competition after they terminate a relationship and separate from the company.

Industries that Use Non-Competition Agreements

Non-competition agreements are commonly used in the corporate world in general. These agreements are also common in certain industries. Examples of industries that often use non-compete agreements include:

  • The financial industry
  • Information technology (IT)
  • Manufacturing
  • Media

How Does a Non-Competition Agreement Work?

Any non-compete contract must be both equitable and fair for all parties involved in the agreement. To be considered enforceable, a non-competition agreement must include certain information, such as:

  • Names and addresses of the individuals signing the agreement; this should include:
  • The protected party (the party that requests the agreement)
  • The noncompeting party (the party prohibited from working for a competitor)
  • A reason to enact the agreement
  • The effective date, or date on which the agreement begins
  • The location/geographic area covered by the non-compete agreement
  • Specific dates during which an employee cannot work in a competitive sense (duration of the agreement)
  • Details about how the non-competing party will be compensated if they agree to the contract's terms; this is called compensation or "consideration"

Legalities of Non-Competition Agreements

A valid non-competition agreement must be reasonable in both scope and duration. A non-competition agreement also must protect a legitimate business interest for it to stand up in court.

When are Non-Competition Agreements Enforced?

A non-competition agreement will be enforced when the relationship between employer and employee ends, if the employer wants to prevent that employee from competing against them in their new position. Things considered competition can include:

  • Working for a competitor within the same market;
  • Starting a new business in the same field;
  • Recruiting the previous company's workers to leave with them.

However, non-competition agreements must meet certain criteria to be enforceable. Legal counsel should review any non-competition agreement to make sure it isn't overly harmful or restrictive to the employee.

Additionally, enforceability of non-compete agreements can vary from state to state. The legal status of these agreements is a matter of state jurisdiction in the United States. Recognition and enforcement of non-compete agreements varies significantly between states; some states will not enforce them at all.

A Non-Competition Agreement Must Be Reasonable

Most states that do allow for non-competition agreements have some kind of standard regarding reasonable restrictions on:

  • Ability of a worker to find employment
  • Geographic scope
  • Length of time

An employer can set non-competition agreements only within realistic timeframes. You cannot prevent your former employees from permanently furthering careers in your field. You should always determine the effective dates of an agreement in advance and work with a lawyer to make sure your agreement will be considered reasonable.

Additionally, jurisdictions can vary widely in how they interpret what terms of a non-competition agreement could be considered overly restrictive or onerous for an employee.

Importance of Consideration

A non-competition agreement will not be enforceable if there is no consideration. Consideration is a legal term that refers to an exchange of value.

Consideration for an employee who is newly hired might just be stating in the agreement that the willingness to hire the employee is the value the employer is exchanging for the new employee's agreement not to compete. However, if you are creating a non-competition agreement for an existing employee, there must be additional consideration for an agreement to be enforceable.

While consideration does not need to have huge value, it must be a real benefit that the employee could not otherwise receive. Examples of additional consideration for an existing employee includes:

  • Change in status from "at-will" to "contract-employee"
  • Higher salary
  • New benefits
  • New job title and/or responsibilities

Benefits of Non-Competition Agreements

The use of non-competition agreements has various benefits. These advantages include:

  • Giving Employers Incentive to Provide Training: A company may not want to provide costly training if employees will just take skills learned to another company. A non-compete agreement reduces the risk of an employee learning skills via training and then leaving the company.
  • Protecting Trade Secrets: Non-competition agreements may prevent an employee from taking sensitive information to a company's competitors.
  • Reducing Turnover: If an employee has a lesser desire to keep changing jobs, they may be a good fit for a company that uses an employment non-compete clause.

Drawbacks of Non-Competition Agreements

Non-competition agreements also come with certain drawbacks. For example, they may reduce a potential employee's bargaining power. If an employee is asked to sign an agreement after they first begin work, they may have little leverage.

Non-competition agreements can also have an adverse effect on the general workforce. These agreements may prevent top talent from using their experience and skills, causing them to leave the field entirely.

Final Thoughts on Non-Competition Agreements

Non-competition pacts, also called binding oaths or non-compete stipulations, manifest as agreements ingeniously contrived to thwart employees or business allies from partaking in rivalrous endeavors against their previous employer or business following cessation or severance. These agreements protect a company's intellectual assets, good knowledge, and client ties. Striking an equilibrium between safeguarding a company's interests and an individual's privilege to earn a livelihood remains indispensable in appraising such agreements' overall efficacy and equity.

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Business

Non-Competition Agreement

Maine

Asked on Jul 25, 2022

Can an consultant to a company be asked to sign a Non-Compete Agreement when that company is being acquired by another company.

My husband is a consultant for a company that is being acquired by another company. The acquiring company no longer needs his services. The acquiring company is asking my husband to sign a non-compete for nothing in return. They stated that he is not an employee of the company being acquired, so financial consideration is not on the table. The acquiring company is in Maryland. The company being acquired is in Maine. Is this legal?

Jane C.

Answered Aug 12, 2022

I suggest you have an attorney review the terms of the non-compete.

Read 1 attorney answer>

Contracts

Non-Competition Agreement

Illinois

Asked on Oct 5, 2022

Can an independent contractor have a non compete agreement?

A company has included non-compete language in my independent contractor agreement. Is this legal?

Domonick G.

Answered Oct 25, 2022

Yes. For duration of contract

Read 1 attorney answer>

Contracts

Non-Competition Agreement

North Carolina

Asked on May 25, 2022

Can you review 2 Non compete agreements to ensure I’m not in violation

I found a noncompete agreement with a prior employer. The potential employer wants to hire me and is asking me to sign another noncompete. I need someone to look over both agreements to ensure I’m not in violation

Cindy A.

Answered Jun 2, 2022

Yes. Have you signed both agreements?

Read 1 attorney answer>

Employee Rights

Non-Competition Agreement

New Jersey

Asked on Jun 29, 2022

Profit sharing legal services across countrys legal?

My friend owns a Company in UK that shares a profit agreement to a limated liability company in Delaware, if they were to terminate there contract and the non competee they are stating i must shut down my buisiness for 6 months legal?

Angela Y.

Answered Aug 9, 2022

The answer depends largely on two factors: 1) what documentation did you sign that had non-compete language and 2) whether the non-compete is enforceable. Many states are trending towards non-enforceability of non-competes, depending on how burdensome they are on the person.

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Business Contracts

Non-Competition Agreement

California

Asked on Jan 27, 2022

My previous job had a secret non-compete closure

I left my previous job because I did not appreciate how I was treated when returning from maternity leave. I stepped down because with a colic infant and a national staffing shortage I couldn’t handle the work load, right after I stepped down they changed the schedule to minimize stress for the current programs director. They also allowed employees to unprofessional to me, when I returned the employee I trained and managed for years lectured me how todo my current position and asked if I had any disabilities or injuries because I had a C-section. This company for years treated me differently then other employees even though I ran and managed profitable programs. Before I left I asked Premier Aquatics that I wanted to be placed in a position similar to the one I had before, and they didn’t have a position for me. I decided to resign and I want to work for another company near their location. I’ve known in the past that they do come after employees with a non-compete and they never offered me anything for the non-compete.

JOSEPH L.

Answered Feb 8, 2022

Generally speaking non-competes are not enforceable in California against employees or independent contractors. The situation may be different depending on all the facts if you were an equity owner or partner in the company. Also, when a business is sold, a reasonable non-compete is enforceable against the former owner(s) since they were paid as part of the purchase price for non-competition representations. California has long had a public policy against non-compete clauses against employees and independent contractors since it affects their ability to earn a living. I am not sure what information you have about them "coming after other employees". Note: I don't have all the facts, and this answer is for informational and research purposes only.

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