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Noncompete Agreement

If your company has trade secrets or proprietary information that it needs to protect, you might be considering a noncompete agreement. Unfortunately, they’re hard to draft and sometimes even harder to enforce. In this article, we cover what noncompetes are, what’s usually in them, and how to create one that will stand up to the law.

What Is a Noncompete Agreement?

A noncompete agreement is a legal contract between an employer and an employee where the employee agrees to not enter into competition with the employer while employed or after the employment relationship ends. Noncompete agreements can be drafted as standalone agreements or within a larger employment contract.

Noncompete vs. Nondisclosure

A nondisclosure agreement (NDA) imposes a legal obligation on the employee to keep information about their employer confidential, even after the employment relationship ends. NDAs restrict an employee from sharing information such as trade secrets and proprietary information.

Should You Have New Hires Sign a Noncompete?

Noncompetes are becoming much less popular because they’ve become harder to enforce over the years. In some states, they’re prohibited. Now, the federal government has announced its intention to further restrict them.

Because of their limited enforceability, many companies use noncompetes only when they’re absolutely necessary. If you’re considering using a noncompete agreement, you’ll want to know whether they’re enforceable in your state, to what extent they’re enforceable and whether or not the cost of drafting and enforcing the agreement will outweigh the benefits for your company. To answer these questions, consult a business attorney familiar with the rules in your state.

Common Terms Included in Noncompete Agreements

What terms you’ll find in a noncompete agreement varies state-by-state. Below is a list of the most common terms included in noncompete agreements.

Recitals

Recitals, sometimes called the preamble, is the introductory section of a contract that lists the parties and the contract’s purpose. Recitals describe why the parties have decided to enter into the agreement.

Description of What’s Prohibited

Noncompete agreements must define what is prohibited by the agreement. This usually includes a noncompete covenant and a nonsolicitation covenant. A noncompete covenant prohibits the employee from engaging in business activities that compete with the employer. A nonsolicitation covenant prohibits the employee from soliciting business from the employer’s clients or customers.

Duration

Noncompete agreements cannot be enforced for an indefinite period of time. They must include a term defining the duration of the agreement. Each state has its own rules for how long a noncompete agreement can continue.

Distance

Noncompete agreements must be geographically limited. Just like duration, states have their own rules about how geographically broad a noncompete agreement can be.

Choice of Law and Choice of Venue Provisions

Choice of law and choice of venue provisions determine which state’s law applies and where a lawsuit would need to be filed should there be a dispute over the noncompete agreement.

Severability and Merger Clauses

If a court rules that a portion of your noncompete agreement is unenforceable, you still want the rest of it to be enforceable. Severability clauses do this by stating that even if a certain provision is deemed unenforceable, the rest of the agreement must still be enforced.

Merger clauses, on the other hand, state that only the terms in the signed agreement will make up the entire agreement. These are used to prevent parties from arguing that any other statements or promises were a part of the agreement.

At-Will Provisions

Many noncompete agreements are incorporated into at-will employment agreements to help ensure that the employee is, in fact, hired at-will. Companies who intend to hire employees on an at-will basis will want to make sure none of their written agreements — including noncompete agreements — alter the employment relationship.

Noncompete Agreement Template

Because of how specific and varied state rules are about what terms are enforceable, noncompete agreement templates are not advised. Some template providers do account for state laws, but even state-specific templates will not account for industry-specific limitations.

A bad template can lead to unnecessary lawsuits and other legal issues down the road. The best way to create a noncompete agreement is to seek the help of an attorney, even if it’s just to review a template you already have.

How to Create a Noncompete Agreement for Your Organization

Step 1: Consult an Attorney

A noncompete agreement should be drafted by a licensed attorney. Before sending anything to your new hire, consult with your in-house counsel or a business attorney who is licensed to practice in your state. If you have an existing agreement, or if you have been using a template you found online, have an attorney review it to make sure it’s compliant with state law.

Step 2: Determine the Scope, Duration and Distance of the Agreement

In addition to being legally compliant, noncompete agreements should be tailored to your needs. In many states, whether noncompete agreement is enforceable will depend on whether the terms of the agreement are “reasonably necessary.” Be sure that your noncompete agreement reflects what your company actually needs to protect as far as scope, duration and distance.

And remember: if you create a noncompete agreement that goes beyond what is reasonably necessary, you run a great risk of rendering the agreement illegal. For example, if your company’s clients are all within a 50-mile radius of your headquarters and your business activities don’t extend far beyond that, a noncompete agreement that prohibits competition within a 300-mile radius will likely be unenforceable.

Step 3: Make Sure to Provide Consideration

All contracts require consideration to be enforceable. Consideration is what a party receives in exchange for agreeing to the terms of a contract. In the case of an employee, consideration for agreeing to the terms of noncompete agreements is usually the opportunity for employment.

In fact, one of the biggest mistakes companies make is having employees sign noncompete agreements after they’ve already started working as opposed to having them sign it as a condition of employment. This is a problem because, in some cases, an agreement executed this way is unenforceable since no consideration was given to the employee in exchange for agreeing to the terms.

Questions You’ve Asked Us About Noncompete Agreements

Are noncompete agreements enforceable?
Whether a noncompete agreement is enforceable has historically been governed by state law, and every state is different. Some states, like California and Oklahoma, have banned noncompete agreements completely, while others have limited their enforceability. Recently, however, the White House announced its intention to limit noncompete agreements at the federal level.
How long should our noncompete agreement last?
Generally, noncompete agreements should last as long as is allowed by applicable law. Some states limit noncompete agreements to two years, while others do not have a specific limitation. In states where there is no specific limitation, courts usually consider what is reasonable under the circumstances.
What should I do if a former employee is violating their noncompete agreement?
If your employee is violating their noncompete agreement, then you must take steps to enforce the agreement as soon as you are aware of the breach. This might include informing them in writing that they have breached the agreement and asking them to comply, or filing a lawsuit. Contact your legal counsel for advice on how to best enforce the agreement under the circumstances.
Natasha Wiebusch

Natasha Wiebusch

Natasha is a writer and former labor and employment attorney turned HR professional. Her experience as a litigator and HR trainer inspired her to begin writing about anti-discrimination laws in the workplace. As a writer at Eddy HR, she hopes to provide helpful information to both employees and HR professionals who need help navigating the vast world of human resources. When she’s not writing, you might find her cheering on the Green Bay Packers or hiking in the Northwoods of Wisconsin.

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