• Are You Sure Your Non-Compete is Enforceable?
  • August 28, 2013 | Author: Donna Ray Berkelhammer
  • Law Firm: Sands Anderson PC - Raleigh Office
  • A recent article in Barron’s states that there has been a 60% increase in employers suing departing employees for violating non-competition agreements in the past decade.  Overzealous restrictions may be stifling entrepreneurship. 

    Courts, including those in North Carolina, however, are reluctant to enforce non-compete agreements and prevent someone from earning a living.  It is essential for companies to thoughtfully craft their non-compete agreements to protect their legitimate business issues, but not be over-zealous (and the agreement be unenforceable). It can be a tricky balance.

    In North Carolina, a restrictive covenant is valid and enforceable if it is:

    • in writing entered into at the time and as a part of the original contract of employment
    • based on a valuable consideration
    • reasonable both as to the time and territory
    • designed to protect a legitimate business interest of the employer
    • not against public policy.

    In determining whether restrictions on competition are reasonable, North Carolina courts balance the following factors:

    • the area, or scope, of the restriction the area assigned to employee
    • the area in which the employee actually worked or was subject to work
    • the area in which the employer operated
    • the nature of the business involved
    • the nature of the employee’s duty and his knowledge of the employer’s business operation.

    Because this is a balancing test, the analysis of whether the agreement is enforceable will vary case by case. A long time period may be enforceable where the geographic scope is very limited and the definition of competition is very limited (and vice versa). If the non-competition agreement for an employee is found by a court to be unenforceable, you may  have trouble the same agreement against other employees.  It is important to get it right to protect your business.