The use of non-competition agreements to protect a company's
relationships and sensitive information is a relatively common
practice. What can be less common, however, is careful use of
non-competition agreements, with the potentially damaging
consequence of making a non-compete unenforceable at a time when
protection of business interests is critical.
There is no magic bullet to guarantee enforcement of a
non-compete, as the legal standards in this area – even in
more non-compete friendly states – delegate significant
discretion to judges, resulting in potentially different results on
similar sets of facts. However, there are steps companies can take
to make careful use of non-competes to enhance the
likelihood of enforcement. If a company deems it critical to
protect its investment in people from being used against it, the
employer would be wise to consider the following:
