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« Why employment lawyers screamed more than those Denny's chickens | Main | Eight ways to guarantee yourself a noncompete lawsuit »


Scott F. Gibson

Great post, Jay.

Non-compete law is an interesting area. If an employer truly wants to develop an enforceable non-compete agreement, he must limit rather than expand the scope of its coverage. The agreement must be obtained through practices that are both substantively and procedurally fair.

Courts look for visual cues to determine whether the restrictive covenants are fair and enforceable. I discuss these principles in my Black Hats and White Hats series on the BiziBoom blog.

Charles h. Green

Excellent post, would that more employers heeded you.

I would like to push on one point, though, and would be curious to get your take.

As to stealing or taking secrets-- technology, IO if it's clear--I'm with you. Customers--not so much.

I have yet to meet a customer who likes being told whose property they are. So right off the bat, that kind of litigation incurs two strikes against both old company and previous employee by the customer.

Worse, if the company can be talked out of the relationship by an employee, you have to wonder how string that bond was in the first place; shouldn't the company have to earn the loyalty? If the customer wants to go with the employee, I'd say that's who earned it. Get back to the product/service drawing board.

Finally, I echo your point: the best client retention policy is an employee retention policy.

Interestingly, while it may seem counter-intuitive for someone in your role to counsel clients against such litigation, it makes you far more credible and trustworthy; which letsbyou wor at consulting rates and cut your sales costs. A virtuous circle, I'd say.

Thanks for a fine post.

Charles H. Green
Trusted Advisor Associates

Rob Radcliff

Jay - Good thoughts as always. However, employers have the right to protect proprietary information that may not rise to rise to the level of a trade secret. At least At least they do in Texas.


Andy Arnold

Enjoyed reading the post. I certainly agree with most of your points. I would probably not agree that customer relationships should be protected with non-competes (although it seems to be the law of most states). Companies can enter into contractual relationships with customers if they want to create an legally enduring relationship. Otherwise, it is up to them to make sure the customer knows that "it is the company that makes the relationship special" because honestly, a good deal of the time it is the employee who has earned the loyalty.

Nonetheless, these issues deserve to be grappled with, and your grappling should lead to further reflection by your readers.

Evil HR Lady

I totally agree with this assessment. I'm not a fan of non-competes for the reasons you laid out. Good to hear your take on it.


Hi Jay,

I know you wrote this a few years ago, but I am caught up in an agreement that I feel is unfair to me. I worked in an high tech industry (Mobile) for 8 years and worked for a company for 90 days and it did not work out, they held me to this agreement when I left. I feel this is very restrictive unfair because it keeps me from working in my field and my job with them was not the same as the one I would be going to. I did not take any info from them when I left, but did leave them with suggested improvements that they did put into their product. So I am telling me new potential employer that yes I am under a non compete, but I feel this will again blow any chance I have to find a job, what should I do?

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