Three other states are passing or amending laws that would prevent companies from using non-compete clauses to prevent low-wage workers from turning to their competitors. As early as 1414, English customary law decided not to impose non-compete obligations because of their nature as trade restrictions.  This prohibition remained unchanged until 1621, when it became clear that a restriction limited to a specific geographic location was an enforceable exception to the previously absolute rule. Nearly a hundred years later, the exception became the rule with the turn of 1711 by Mitchel v. Reynolds, who created the modern framework for analysing the applicability of non-compete obligations.  In Virginia, the applicability of non-compete undertakings is governed by common law principles. As trade restrictions, CNCs are not favored by Virginia courts, which only enforce narrow CNCs that do not violate public order. And there is no sign of imminent government action against non-compete obligations, as the White House and congressional Democrats have focused on a wide range of other policies, Beck said, but he predicted the issue would not be forgotten in Washington. In the Netherlands, non-concurrentiebeding or concurrentiebeding is allowed with regard to matters such as the change of employer and the address to customers of the former company. Inappropriate clauses can be declared invalid by the courts.  Even with significant restrictions on the application of these agreements, employers can protect their property in other ways. For example, strict prohibitions on soliciting customers may be enforceable if broader non-compete obligations are unenforceable, and non-disclosure agreements for employees are generally enforceable if appropriately adapted.
In addition to contractual restrictions on competition or solicitation, employers should maximize the protection of their trade secrets and other confidential information through practical safeguards such as improving privacy protections, training employees to protect company information, and consistently enforcing security and confidentiality policies. These recent developments suggest that the federal government will limit the use of employer-employee non-compete clauses. While a universal ban seems unlikely, the federal government can follow the state`s trend and ban non-compete clauses with low-wage workers or workers who don`t have access to the employer`s trade secrets. Contractors and other employers whose employees only have access to customer relations and confidential (but not secret) information may be particularly affected by such restrictions. In Illinois, a measure awaiting the signature of Governor J.B. Pritzker would prevent employers from requiring a non-compete clause for an employee earning less than $75,000 a year. Penalties are a less common feature of the government`s non-compete obligations, but the idea could make its way to discourage companies from using them in situations where they are illegal or unenforceable, Starr said. His research shows that even in California, where non-compete obligations are prohibited and unenforceable under state law, a significant portion of workers are asked to sign them anyway, he added. Under Texas law, “a duty not to compete is enforceable if, at the time of entering into the agreement, it is an ancillary agreement or part of an otherwise enforceable agreement to the extent that it contains restrictions on the time, geographic area, and scope of the activity to be restricted that are reasonable and do not impose a restriction greater than that necessary to protect goodwill.
or other business interests of the promise is required.  Physicians are subject to special rules, in particular that a physician cannot be prohibited from “continuing to care for and treat one or more particular patients during an acute illness, even after the termination of the contract or employment relationship.”  In response, the Antitrust Division of the American Bar Association expressed doubts about the Commission`s legal authority and ability to restrict such agreements, insisting that “the issue of non-compete obligations is likely to be inappropriate” for legislative action. Canadian courts will enforce non-compete clauses and solicitation prohibitions, but the agreement must be limited in terms of timing, scope of activities and geographic scope to what is reasonably necessary to protect the company`s proprietary rights, such as confidential business information or customer relations, and the scope of the agreement must be clearly defined. In 2009, the Supreme Court of Canada`s case of Shafron v. KRG Insurance Brokers (Western) Inc. 2009 SCC 6 held that a non-compete obligation was invalid because the term “Metro Vancouver” is not defined by law.  “I think the federal government will probably take action,” Beck said. “I expect it to be a ban on the use of non-compete obligations for low-wage workers and perhaps dismissal obligations.” Teresa Lewi represents and advises employers in a variety of federal, state and municipal labor laws.
She focuses her practice on trade secrets, non-competition, executive compensation, separation, employee mobility, discrimination, and compensation and scheduling issues. Teresa has successfully adjudicated cases at the federal and state levels. The applicability of such agreements depends on the law of the State concerned […].