It is always nice to get a different perspective on non-compete agreements, especially from the employee’s side. Florida employment lawyer Donna Hallman provides her top five ways to get out of a non-compete agreement in a recent article. They include:
1. The employer breaches the contract;
2. There is no legitimate interest to enforce;
3. Your agreement is for too long of a time period;
4. The so called “confidential information” is readily available to the public; and
5. Public health and safety would not be served.
It’s interesting how employers and lawyers attempt to carve out non-compete agreements that address many of the defenses alleged set forth by Donna. With respect to number 1, "an employer breaches the contract", clauses are frequently drafted where a breach by the employer is identified as a basis not to disallow the non-compete provision. Whether such a clause works depends on the breach.
As to number 3, "the agreement is for too long a time period", Texas courts are permitted to shorten the non-compete term and make the agreement enforceable.
Numbers 2 and 4 seem to always be the best defenses now. Basically the claim is that what gives rise to the non-compete is not protectable. To put it another way, I didn’t give you any information, training, or other propriety information that would give rise to the necessity for a non-compete in the first place. The agreements have become easier to enforce in Texas, and this has become one of the last remaining defenses to non-compete agreements
Here are a few more for the list:
6. Don’t sign the non-compete in the first place (Duh);
7. If you are going to sign a non-compete, make sure it’s in a jurisdiction where it’s very difficult to enforce like California; and
8. Include a buy-out provision in your non-compete so you can get buy your way out of enforcement.