Overview: One type of employment contract is the restrictive covenant. Employers should safeguard their trade secrets, client or customer information, employee lists or other information that may give them a competitive edge in their industry by requiring employees to sign a restrictive covenant, i.e., noncompete agreement, nonsolicitation agreement, and/or nondisclosure agreement.
Although restricting the use of this information by employees during and after their term of employment may be vital to the protection of an employer's business, an employer must ensure that the terms of the agreement protects the employer's legitimate business interests and extends no further than is reasonably necessary to protect those interests. Employers should be aware, however, that some states do not enforce restrictive covenants at all, while others place restrictions on the types of information that is confidential, the geographic scope of the covenant as well as the duration.
In addition to requiring a new employee to sign a restrictive covenant before working, employers should also ensure prior to hiring the prospective employee that he or she is not subject to a restrictive covenant with his or her former employer. One way to accomplish this is to request that the new employee sign a representation that he or she is not subject to any restriction on competition or other contractual limitation on his or her ability to do the job.
Trends: Restrictive covenants are often challenged by former employees. Employers should carefully review the terms of their restrictive covenants to ensure they don't force an employee out of the entire industry - this would be considered overbroad and the courts may refuse to enforce the agreement, thereby possibly leaving an employer's proprietary information exposed to a former employee to be used for his or her own benefit.
Author: Melissa A. Silver, JD, Legal Editor
Updated to reflect forthcoming South San Francisco notice-posting requirements.
Updated to include information on the forthcoming liveflo: Determine if a Term or Condition of Employment Is Subject to Collective Bargaining.
Updated to reflect provisions regarding nondisclosure agreements, effective October 11, 2019.
Updated to reflect noncompete restrictions for low-wage workers, effective October 1, 2019.
Updated to reflect Maryland noncompete restrictions for low-wage workers, effective October 1, 2019.
Updated to reflect forthcoming final overtime rule updating and revising the Fair Labor Standards Act (FLSA) overtime exemption requirements.
Updated to reflect noncompete restrictions, effective September 19, 2019.
Updated to include noncompete restrictions for low-wage workers, effective September 8, 2019.
Guidance for HR on the advantages of using restrictive covenants.