Non-Competition Agreements: An Attorney's Guide to Post-Employment Restrictive Covenants

More than 30 million workers - at least 18% of the U.S. workforce - are required to sign non-competes as a condition for accepting a job. These include a wide range of workers, from supply chain executives to sandwich makers and outfit designers. Less than 10% of workers negotiate these clauses, while 93% of them read and sign them anyway. In addition, 30% to 40% of workers are asked to sign non-competes after they have already accepted the position. 

It comes as little surprise that non-competes are the most controversial post-employment restrictive covenant. Typically found in employment or separation agreements, non-competes between employers and employees prohibit the employee from performing work that competes with their employer's business. This prohibition typically begins upon employment and lasts for a period after the termination of the employment relationship. Non-competes generally describe the duration of the non-compete period, the geographic limitation of the non-compete, and the types of work that the employee may not perform during the non-compete period.

During this program, Mr. Leffler will discuss, 

• What is a post-employment restrictive covenant;

• The prevalence of non-competes in the United States;

• Factors that influence the enforceability of a non-compete including duration, geographic scope, and what an employee is prohibited from performing;

• How non-competes are enforced & how courts exercise discretion to partially enforce or even rewrite overbroad non-competes; 

• The disproportionate impact of non-competes on women and people of color; 

• Regulation on non-competes; and

• Practice tips when advising employers or employees on non-competes.
  
  

Learning Objectives:

1. Identify key elements of a non-competition agreement

2. Examine the impact of non-competition agreements in the US labor market

3. Discuss the enforceability of non-competition agreements and how judges may blue-pencil the clauses

4. Prepare strategies to negotiate non-competition agreements for employee or employer clients