It is very interesting how often C-level and key employees are asked to sign non-competition agreements that contain non-competition language by the companies that employ them.  It is equally interesting how often employees ask me, even as they are signing on the dotted line, “How enforceable are such restrictive covenants?”

The short answer:  It depends.

The employer who narrowly tailors a non-competition clause in terms of length of the restriction and geographic scope will have a much easier time enforcing the restrictive covenant.  The broader it becomes, the easier it will be for the employee to skirt it.

Of course, the employee should be aware of a couple of critical factors in deciding whether to take his or her chances in going against the restriction on its face.  First, the new employer (or a new company started by the employee) could get sued along with the employee.

Second, a court, if there is language in the contract permitting a rewriting of the clause to fall within “a rewrite to comply” (within the then-state of the law) may wind up being restricted in some form.  In other words, the court may not throw out the entire provision, and depending on how the court slices it, the employee may wind up violating the terms of the court-sculpted version of the non-compete provision.

Third and perhaps most importantly, the fact that there would be litigation at all may put the employee in the difficult position of having to hire a lawyer and spend money to defend himself or herself against an employer’s attempt to enforce the restrictive covenant.

For low-level employees, restrictive covenants across the board may be more problematic.  Often attempting to restrict everyone – having everyone sign the same documents – may be unwise, as indeed a delivery person or a secretary may not be privy to really sensitive information, developments and plans, marketing concepts and other business strategies.  Any attempt to restrict such employees without access to “important information” must be carefully reviewed.  Indeed, a food delivery person making minimum wage versus an officer of a growing food business should not be treated the same, just as a low-level coder should not be treated the same as the lead software architect for a new technology product.

Companies need to understand that they may be able to accomplish the same goals by beefing up their agreements’ protections on confidential information, as well as their restrictions on non-solicitation of customers and employees.  Working with a lawyer is critical to the success of any company’s restrictive covenant goals.  Similarly, working with a lawyer is critical to the success of any employee who is in a position to negotiate the clause or who wishes to understand the restrictions being placed upon him or her.   In the end, the goal is to get to an agreement that both parties can live with because, if it comes to litigation, both the employer and the employee could find themselves wishing the language of a non-competition clause had been more carefully crafted or was not included at all, depending on how high up on the employment food-chain the employee actually sits.