There are several tactics for dealing with non-compete agreements including ignoring the agreement and hoping for the best, negotiating with the employer, and attacking the validity of the agreement in the courts.
This article by TELG principal Tom Harrington and TELG managing principal R. Scott Oswald was published by Westlaw Journal Government Contract on August 18, 2014. The full article is available as a PDF on our site.
The Best Defense is a Good Offense – Invalidating Non-Competition Agreements when Departing from a Company
It is difficult to describe the combination of emotions employees feel when beginning a new job. They are excited to embark on a journey with their new employer. They are anxious about “fitting in” with their new colleagues. They are hopeful that they made the right choice for their career and are eager to take on new challenges. They want to be seen as reliable, confident and intelligent.
Of the personality traits they do not want to exhibit, “confrontational” is likely high on the list. Whether caused by a desire to avoid confrontation early in an employment relationship or through the whirlwind of required paperwork in a new position, employees routinely disadvantage themselves by entering into restrictive noncompete agreements.
From the largest government contractors to the smallest boutique firms, the use of noncompete
agreements has been increasing for some time. But there are circumstances that permit a departing employee to challenge the legitimacy of these agreements, even when all the requirements of contract formation have been met.
This commentary provides an overview of some of the basics of non-compete litigation and enforcement. Specifically, it discusses the steps a departing employee can take to preemptively challenge the validity of a non-compete agreement and why an employee may choose to pursue or forgo such a course of action.