Our most recent article in this series (May, 2015) addressed the first step of the analysis necessary for the multi-state employer’s design and implementation of a manageable, limited number of noncompete agreements compliant with most, if not all, applicable state laws. That article addressed the identification of the “protectable interests” amongst all employees with the goal of matching the appropriate employee categories with the “right blend” of restrictive covenants needed for each employee group. With that background, we move to the next step in the process; identifying which of the employees’ resident states pose unusually difficult procedural hurdles to the enforcement of restrictive covenants at the onset.
There are essentially 2 such key hurdles. The first involves those state laws which require extra “consideration” beyond just continued employment for the enforcement of employee noncompete agreements. These states include South Carolina, North Carolina, Kentucky, Illinois, Virginia, Minnesota, Oregon, Washington and a few others. Most state laws of this type require employers to condition the actual hiring or promotion of the employee on his/her execution of the noncompete agreement or alternatively, for employers to provide some extra, material, monetary benefit in exchange for the employee’s signature. Some state laws such as Illinois go so far as to require “employer clairvoyance,” essentially stating that even signing the noncompete at the time of hire is insufficient if the individual’s employment does not ultimately last at least 2 years. Regardless, employees in these states compile a subgroup deserving of special consideration. For these employees, the multi-state employer can either choose to enter into noncompete agreements only with new-hires or provide the employees of these states with some additional incentive (i.e. bonus) in return for their execution of the noncompete agreement.
The second initial hurdle involves a very limited number of state laws which require that in order to be enforceable, a noncompete must be “ancillary” to an actual employment contract. Translated, this means that a stand-alone noncompete agreement will not be enforceable in these states. The contract must contain other terms covering the actual wages, hours and conditions of employment in order to be enforceable. Here, and for purposes of employee residents of these few states, the multi-state employer will either need to create a separate, all-encompassing agreement, bypass these employees altogether or use the stand-alone agreement knowing in the end, it will be unenforceable.