Receiving a job offer from a desirable company is usually a very uplifting moment, so uplifting in fact that the employee may forget to pay attention to his own interests. One of the most common examples of this non-attention is the unquestioned acceptance of the new employer’s request that the new employee sign an employment contract. And in signing the employment agreement, the excited employee fails to notice that the agreement contains a non-complete agreement. The employee’s lack of attention ceases when he decides to seek a new job and the employer decides to enforce the non-compete. What then?
Basics of a non-compete agreement
North Carolina judges do not look favorably on non-compete agreements, and a poorly drafted agreement may be unenforceable. In order to bind the employee:
- The non-compete must be reasonable in its duration, territorial coverage and scope;
- The non-compete can usually extend more than two years following the beginning of the term of employment;
- The non-compete must have reasonable geographic application; and
- The non-compete cannot unreasonably restrict the new job duties of the employee.
If a non-compete exceeds these limitations, a judge may well decide that the agreement is unenforceable.
The new employee’s dilemma
If presented with an employment contract that contains an overly broad non-compete clause (or some other objectionable provision), the prospective employee is presented with a difficult dilemma: object to the non-compete language or lose the job offer. What can be done?
If presented with such a conundrum, the employee’s best solution is a consultation with an experienced employment lawyer. A knowledgeable attorney can examine the non-complete clause and determine whether it may be unenforceable. If so, the prospective employer may be persuaded to either delete the clause or modify it by narrowing the scope of the limiting clauses.