Non-compete agreement with pen lying on it

Will COVID-19 Change How Non-Competes are Enforced?

If you’re one of the millions who were laid off due to the coronavirus, you’re probably planning to seek employment as soon as the economy reopens. There’s no doubt that the job market will be crowded and competitive, and your best or only opportunity may be to work for a competitor of your former company. Because this is an unprecedented situation, you may be wondering if the courts will show any leniency on your non-compete agreement. Can you be sued for taking that job? As most lawyers will answer, “It depends.”

Is there a Way Around My Non-Compete?

Enforcement depends on the facts.  State laws govern non-compete covenants, and the Texas statute states that any restrictions must be “reasonable.”  If you can establish factual proof that the restrictions are oppressive and hindering your ability to earn a living, then you may have an avenue around your non-compete.

Actually, in the current atmosphere, courts may closely scrutinize whether any non-compete restraints are reasonable. These are uncharted waters. The pandemic has caused such massive layoffs and such a drastic reduction in job opportunities, courts likely will be looking at non-competes differently. More than ever, employers will be burdened with clearly justifying any restrictions they want to place on employees’ future job activities.

No one is quite sure right now how this is going to shake out. But one thing’s for certain – if your future is at stake, you should get advice from an employment law firm with experience analyzing the facts around non-competes. 


You can’t be prevented from earning a living

Let’s go back to that Texas statute. It states than non-compete restrictions cannot be “greater than necessary” to protect the company’s legitimate business interests.

The short of it is, you have the right to earn a living, the right to engage in an occupation.

The United States Supreme Court in Board of Regents v. Roth even went so far as to view this as a constitutional right. In this severely stressed job market, it is likely that courts will see any restrictions that prevent a person from earning a living as “greater than necessary.”

What allows an employer to enforce a non-compete?


The main intent of a non-compete agreement is to protect an employer’s confidential information. This is basically any private and sensitive information that promotes the company’s legitimate business interests. The company has invested time and money to develop this proprietary information, and it is considered the employer’s property. If an employee leaves and takes these valuable trade secrets to a competitor, it amounts to unfair competition.

Ultimately a judge will decide whether the employer’s right to protect its business interests takes priority over the former employee’s right to work in a particular position.


Get advice before you take the job  

In this environment it’s natural that you would want to secure employment as quickly as possible. If a non-compete is part of your employment picture, a little caution can go a long way in saving you strife, and possibly even saving your career.

Before moving forward, talk to an attorney with extensive experience dealing with non-competes. At Gardner Employment Law, we have analyzed hundreds of these agreements and have guided our clients to making the best decisions for their careers and futures. If you need legal advice about your non-compete, contact us now.

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