How to Get Out of a Non-Compete Agreement

All jokes aside, while getting out of non-compete restraints is not always possible, some of the most common ways that employees – and employers that want to hire them – can overcome such agreements include the following:

  1. Employee was not provided the necessary “consideration” in return for the promise not to compete;
  2. The restraints are patently unreasonable in time, geographic area, or scope;
  3. There is no legitimate business interest in requiring an employee to sign a non-compete agreement;
  4. The agreement has expired;
  5. The agreement is too ambiguous to be enforceable;
  6. The agreement is missing a key term, making it unenforceable;
  7. The employer has not complied with its obligations under the agreement;
  8. The agreement is superseded by another agreement;
  9. The agreements fails to meet specific requirements of the state whose law governs the agreement;
  10. The agreement violates public policy or imposes undue hardship on the employee.

Keep in mind that:

  1. These defenses are specific to each employee and each non-compete agreement;
  2. Some defenses are available in federal court, but not in state court;
  3. Some defenses are available in one state, but not the other (see this MAP, for example);
  4. Most of these defenses will have to be asserted in court.

In short, any employees feeling stuck in a non-compete agreement – and employers that consider hiring them – should consult with an employment attorney to see which of these defenses, if any, will allow them to get out of the non-compete restraints.

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice. Her practice includes commercial, intellectual property and employment litigation. You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.

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