But many employers want to know something more straightforward: How long can I make the restrictive covenant in my agreement; in other words, how long can the non-compete provision be?
The answer, of course, is “it depends” — in general, the higher-ranked the employee, the broader the scope of the non-compete. And it also depends on other factors, such as the type of businesses the employee would be prevented from working for, and the geographic nature of the restrictions.
Of course, that’s not a satisfying answer either because again, the central questions is, what’s the maximum amount of time that a court will enforce a non-compete agreement?
In Connecticut, two years is seen by some as the typical time period for enforcing a non-compete agreement, as one case ruled back in 1988.
But where the time restriction is accompanied by a narrow geographic or industry restriction, courts have granted non-competes of five years. Here are some examples:
- 5-year, 20-mile restriction on employee selling or servicing oil or oil burners (employer is oil burner servicing company)
- 5-year, statewide restriction on employee managing any welding business
- 5-year, 5-miles-from-town restriction on employee operating a bookkeeping and tax prep business (noting “The time factor of five years is on the long side of reasonable” but granting temporary injunction nevertheless)
- 5-year, 5-mile restriction on former owner of business from operating valet car service
Can you do something longer? Perhaps. In one reported instance in another state, a ten year non-compete agreement was ruled enforceable! But that’s definitely the exception, rather than the rule.
Indeed, a five-year non-compete isn’t going to work in some (many?) employment agreements. So before you rewrite all of your agreements to have a broad restrictive covenant, you should check with experienced employment law counsel and figure out if your agreement really is narrowly tailored to meet you needs. And experienced counsel can also add in certain contract provisions to help in those instances where the courts may have concerns with a broader non-compete.
But if you’ve been wondering if you courts enforce five-year non-compete agreements, the above cases show that it happens — perhaps even with more regularity than you might first think.