In recent years, it has become quite common for surgeons to become part owners of free-standing ambulatory surgery centers in Texas. Often, their purchase of the ownership comes with the strings attached – a requirement that they perform a certain number of surgeries at that particular ACS and that they do not compete with the ACS within a certain geographic radius.
Many employees assume that if they were let go their non-compete agreement automatically becomes null and void. This is not true, however, in a lot of states, and this assumption can turn out to be very costly for an employee. It is much better to plan ahead and make sure that the departure from the former employer is as smooth as possible, and to avoid doing some of the things described above that often trigger a non-compete lawsuit.
States around the country vary in how they approach the enforcement of unreasonable non-compete agreements. While the majority of states allow their courts to “blue pencil” or rewrite restrictive covenants to make them reasonable, three states do not permit such reformation, and four states have no clear legal guidance on whether blue-pencilling is permitted, leaving employers in limbo.
In non-compete disputes in Texas, employers often argue that everything that they provided to employees was confidential, while employees argue that nothing that was provided to them was confidential. As the result, the issue of confidentiality often ends up being an ultimate “fact issue” that must be resolved by a judge or a jury.
In Texas, client non-solicitation agreements are subject to the same rules as the non-compete agreements. Therefore, they must be “reasonable” and “not impose a greater restraint than is necessary to protect the goodwill or other business interest” of the employer.
In Texas, a 5 to 10 year non-compete agreement related to a sale of business is the norm. n addition to the non-compete restrictions in the sale documents, those sellers who stay employed by the buyer after the sale often sign a second non-compete agreement as part of their employment package, which does not kick in until after their employment with the buyer terminates.