The New York Times this morning has an article that suggests that non-compete agreements are being used increasingly in a broader array of jobs.
His evidence? Well, the article doesn’t cite that.
Though, to the reporter’s credit, in noting the discussion going on in Massachusetts over legislation on the topic, he cites to a trade group’s executive vice president who said, “The ban to noncompetes is legislation in search of an issue.”It quotes one professor as saying “There has been a definite, significant rise in the use of noncompetes, and not only for high tech, not only for high-skilled knowledge positions.”
Connecticut went through this same discussion last year. Indeed, a watered-down bill restricting the use of non-compete agreements passed the Connecticut General Assembly last year. But Governor Malloy vetoed it stating that the bill left “certain key terms undefined or unclear.”
“As a result” he added, “this bill has the potential to produce legal uncertainty and ambiguity in the event of a merger or acquisition. If I signed into law, costly and time-consuming litigation would likely be required to provide necessary clarity.”
Thus, Connecticut is still following the “common law” when it comes to non-compete agreements — that is, the law that has been developed through court cases over the years. Even the Connecticut Law Tribune suggested that such a path may be the right one for the state:
Noncompetition agreements have a valid place in today’s economy, but their growing use to stifle healthy marketplace competition, their theoretical underpinnings as a strained corollary to the employment at-will rule and the disproportionate bargaining strength often used by employers to obtain them have infected these contracts with a taint of inherent unfairness and commercial impropriety. There is a need for reform—reform carried out through the process of common law evolution.
In order to be valid and binding, a covenant which restricts the activities of an employee following the termination of his employment must be partial and restricted in its operation “in respect either to time or place, … and must be reasonable—that is, it should afford only a fair protection to the interest 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. The interests of the employee himself must also be protected, and a restrictive covenant is unenforceable if by its terms the employee is precluded from pursuing his occupation and thus prevented from supporting himself and his family.
What does that mean for employers? Ultimately, it means creating a non-compete that is narrowly tailored to protect a legitimate business interest. Having all employees — from your senior vice president to the mail clerk — sign the same agreement with the same restrictions may prove to be its undoing.
There are, of course, exceptions to the rule — security guards, for example. California bans them. Other states, like Georgia, have statutory restrictions on them.
So before you seek to enforce your non-compete agreement, check with local counsel first to make sure it’s going to pass muster.