• Using An Overbroad Confidentiality, Non-Compete And Non-Solicit Agreement To Scare Employees Can Seriously Backfire
  • December 22, 2015 | Author: Aaron H. Stanton
  • Law Firm: Burke, Warren, MacKay & Serritella, P.C. - Chicago Office
  • Most employers know that Illinois law requires them to narrowly tailor restrictive covenants in employment agreements to the specific interest(s) that the employer seeks to protect (i.e., proprietary customer information and the actual customers that the employee worked with). Employers, however, often tell counsel that they do not want to pay an attorney to “narrowly tailor” but want generic agreements with “broad” restrictions to “scare employees.”

    While such broad language has always been dangerous, particularly with “key” employees that the employer entrusts with important, confidential client information, taking this course of action just became a lot more perilous after the Illinois Appellate Court, in AssuredPartners, Inc. v. Schmitt, rendered on October 27, 2015. In this case, the court refused to enforce non-competition, non-solicitation, and confidentiality provisions in an employment agreement between an insurance broker and one of its sales managers, even though the employee allegedly stole the employer’s “customer expiration list,” which included allegedly confidential expiration dates of the customers’ insurance policies. Affirming summary judgment in favor of the employee, the court held that the non-competition, non-solicitation, and confidentiality provisions were unenforceable as overbroad and refused to modify the restrictions even though the agreement contained a “judicial modification” provision.

    The court’s ruling was based in large part on the unique facts of this case. The employee had been in the professional insurance business since 1999 and since 2003 had “specialized” in the niche field of “lawyers professional liability insurance” (“LPLI”). In 2011, the employee signed a “senior management agreement” that restricted the employee from: (1) working for a competitor of the employer in the United States; (2) soliciting any customer or potential customer of the employer; or (3) disclosing any information concerning the employer or its subsidiaries and affiliates.

    Non-Competition Provision

    The employer contended that the non-competition provision was valid because it protected a legitimate business interest — the employer’s “customer expiration list,” which the employee allegedly stole and used to solicit customers after he resigned. Rejecting this contention, the appellate court held this provision overbroad because it was not narrowly tailored to the “specific kind of professional liability insurance practice [the employee] developed during his employment.” Instead, this clause broadly prohibited the employee from working with all types of professional liability insurance, not just his specialty of LPLI. As a result, this provision “clearly exceeded that which is necessary to protect...the customer expiration list.” The court also noted that the geographic and temporal scope — the entire United States for 28 months — was overbroad given that the employee only worked for 20 months under the agreement in question.

    Non-Solicitation Clause

    The court also held the customer non-solicitation provision overbroad because it precluded the employee from soliciting any customers or potential customers of the employer regardless of whether they worked with the employee in the LPLI business. In so holding, the court noted that this was broader than necessary to protect “those customers and vendor/supplier relationships that [the employee] developed while working for [the employer].” As a result, this provision would preclude the employee from working with customers that the employee did not work with during his employment. This was significant because the employer engaged in 47 insurance related businesses covering over 30,000 customers. The employee, however, only worked in one line of business (the LPLI) with far fewer than the 30,000 customers and “only had access to confidential information related to clients he serviced while with [the employer].” [Emphasis in original.]

    Confidentiality Provision

    Even though the employer alleged that the employee stole confidential information (the customer expiration list), the court refused to rein in this conduct using the confidentiality provision because the court found this clause to be overbroad. This provision precluded the employee from “the use or disclosure of any information, observations and data (including trade secrets) obtained by [the employee] during the course of [] employment . . . concerning the business or affairs of [the employer] and [its] respective Subsidiaries and Affiliates.” The court found this provision “patently overbroad” because it covered “almost all information” the employee became aware of during his employment, regardless of whether the information was confidential or proprietary in nature, or even whether he obtained the information from a source other than his employment, i.e., customer and other information that the employee developed in the years before his employment with the employer. The court found that this overbroad confidentiality provision limited the employee’s “ability to work in the insurance industry by preventing [the employee] from using any knowledge that he gained while in plaintiff’s employ, regardless of whether he gained such knowledge, directly or indirectly, as a result of his employment.” [Emphasis in original.]

    No Judicial Modification

    Also, despite an explicit clause in the agreement that “consented to judicial modification” in the event any provision was deemed overbroad, the court refused to narrow the above provisions even though the employer sought to enforce restrictions less onerous than provided for in the agreement. In so holding, the court noted that to do so would discourage employers from “narrow and precise draftsmanship.” Thus, the burden is on employers to narrowly tailor restrictive covenants.

    What Employers Can Do To Protect Themselves

    • More is not necessarily better. Do not draft restrictions broader than necessary to scare and/or deter employees because you could be left with no remedy if an employee, as in AssuredPartners, Inc. v. Schmitt, takes confidential customer information and then steals your customers.
    • One size does not fit all. The restrictions must be narrowly and specifically tailored to the particular employee and the interests that the employer wants to protect. Thus, the exact same language might not work for all employees. As a general rule of thumb, the more important the employee to your business, the more the agreement should be written to this employee’s specific circumstances.
    • Non-Public Does Not Make Information Confidential. Simply because the employee has access to non-public information does not make it confidential to warrant protection under Illinois law. Like non-solicit and non-compete provisions, the confidentiality provision should be limited to information that the employee learned while working with the employer and which the employer developed and/or paid to develop.
    • Consider Garden Leave. A garden leave provision allows an employer to pay an employee their regular salary and benefits not to compete for a certain period of time (generally no longer than 30-60 days). During this time, the employer remains an employee but agrees not to contact any customers unless agreed to by the employer and to assist in transitioning the customers to a new contact person for the employer.