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:
- Employee was not provided the necessary “consideration” in return for the promise not to compete;
- The restraints are patently unreasonable in time, geographic area, or scope;
- There is no legitimate business interest in requiring an employee to sign a non-compete agreement;
- The agreement has expired;
- The agreement is too ambiguous to be enforceable;
- The agreement is missing a key term, making it unenforceable;
- The employer has not complied with its obligations under the agreement;
- The agreement is superseded by another agreement;
- The agreements fails to meet specific requirements of the state whose law governs the agreement;
- The agreement violates public policy or imposes undue hardship on the employee.
Keep in mind that:
- These defenses are specific to each employee and each non-compete agreement;
- Some defenses are available in federal court, but not in state court;
- Some defenses are available in one state, but not the other (see this MAP, for example);
- 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.