• The New Face of Non-Compete Agreements in Georgia
  • June 2, 2011 | Author: Salmeh K. Fodor
  • Law Firm: Marchman, Kasraie & Fodor - Atlanta Office
  • Generally, non-compete provisions are very difficult to enforce in Georgia.  However, on November 2, 2010, Georgia voters made it a little easier to enforce restrictive covenants such as non-compete provisions and non-solicitation provisions. 


    At the last election, Amendment One to the Georgia Constitution was passed.  Amendment One grants the State legislature greater authority to regulate the reasonableness of contracts containing restrictive covenants, such as non-competes.  The hope behind the new law is to make it easier for Georgia employers to enforce non-competes and other restrictive covenants against former employees.   


    The passage of Amendment One means that the recently enacted law on non-competes, previously passed by Georgia's General Assembly, will finally go into effect.  In an effort to provide predictability and enforceability of restrictive covenants, the Georgia General Assembly previously passed (and Governor Perdue signed) HB 173.  HB 173 is codified in O.C.G.A. § 13-8-50 though O.C.G.A. § 13-8-59.   However, due to a ruling of the Georgia Supreme Court, the law could not go into effect unless there was an amendment to the Georgia Constitution.

     

    Now that recently enacted law concerning restrictive covenants is now in effect, what does it mean?  The new law sets forth rules governing restrictive covenants, such as non-compete and non-solicitation provision, in contracts during and after an employee’s employment.  Restrictive provisions in contracts are permitted during the course of employment.  However, the employer must ensure that the provisions are reasonable as to:

    (1)              Time;

    (2)              Geographic Area; and

    (3)              Scope of Activities Barred.


    The rules are slightly different once an employee leaves a company.   After employment ends, the statute sets forth rules for the types of activities that can be restricted and the categories of employees who can be bound by such prohibitions. 


    Non-Compete Agreements


    Whether or not a non-compete provision in a contract will be enforced against an employee after employment ends, depends largely on the employee’s activities and responsibilities during his or her employment.  Specifically, during the course of employment, the employee must have:

    (1)     Customarily and regularly solicited customers or prospective customers 
           for the employer;

    (2)     Customarily and regularly engaged in making sales or obtaining orders or
           contracts for products or services to be performed by others;

    (3)     Performed the following:
                a. 
    Primary duty of management;
                b.  
    Customarily and regularly directed the work of two or more other
                     employees; and
                c.  
    Had the authority to hire, fire or change the status of
                      other employees or had a significant voice in making such
                      decision; or

    (4)     Been a key employee.

     


    Non-Solicitation Agreements


    Non-solicitation provisions in a contract are treated in an entirely different manner.  For a non-solicitation provision in a contract to be enforced against an employee after employment ends, the non-solicitation provision must cover a stated period of time following termination and must only apply to the employer’s customers and prospective customers with whom the employee had material contact during his or her employment. 

    The non-solicitation provision can prohibit such an employee from not only soliciting competing business from the former employer’s customers and prospective customers, but also from attempting to solicit such customers and prospective customers.  Further, the non-solicitation provision can prohibit the former employee from directly engaging in such solicitation efforts and can also prohibit the former employee from helping others engage in such solicitation efforts.

    Importantly, and for a nice change, the language required for the non-solicitation provision is minimal.  For example, the contract does not need to have an express reference to a geographic area or even to the types of products or services that are considered to be competitive.  Mere reference to a prohibition against soliciting or trying to solicit business from customers is sufficient and will apply to:

    (1)     The employer’s customers, and actively sought prospective customers,
            with whom the former employee had material contact; and

    (2)       Products and services that are competitive with those of the employer’s 
            business.

     


    The New Law is Not Retroactive


    As described herein, the Georgia statutes finally provide guidance for employers desiring to include enforceable restrictive covenants, such as non-compete and non-solicitation provisions, in employment agreements.   
    However, the statute passed by the Georgia legislature governing restrictive covenants did not become effective until November 2nd, the day Amendment One to the Georgia Constitution was passed by the voters.  Therefore, the new restrictive covenant rules will apply only to agreements executed after November 2nd, 2010   The maze of current legal rules will remain relevant for employers for years to come.