So you have fired an employee, and he (and perhaps his new
employer) assume that he is now freed from the non-competition
provision in his employment agreement. But is that correct? On one
hand, how can an employer, with one fell swoop, keep an individual
from working for both it and a competitor? On the other, a
deal's a deal, and the employee already received his portion of
the deal (a job). The answer, like many matters involving
restrictive covenants, is highly state specific and driven by the
full set of facts involved.
Starting with the easiest end of the spectrum, there are some
states that simply will not enforce a non-compete where there has
been an involuntary termination without cause. New York is perhaps
the most well-known example, with one court recently capturing the
sentiment as follows: "Enforcing a noncompetition provision
when the employee has been discharged without cause would be
'unconscionable' because it would destroy the mutuality
