Ehrlich says she’s seen employer sentiment on the issue become
more nuanced over the eight years she has been working to make
the covenants less restrictive. Some companies that once resisted
any legislative efforts to rein them in have softened their position
after many talented employees whose options were limited by
them left the state, she says. “The workforce is so tied down that
[businesses] can’t hire the people that they need.”
Getting Your Agreement Right
In light of the increased scrutiny of noncompetes, coordinate
closely with legal counsel if you plan to use such contracts. The
most effective agreements strike a balance between protecting
an organization’s business interests and allowing a person the
right to earn a living. Those with sweeping restrictions don’t just
risk alienating employees and hampering recruitment—they also
may not pass legal muster.
“If you paint with too broad a brushstroke, it could back-
fire,” says Declan Leonard, a managing partner at the law firm
Berenzweig Leonard in Alexandria, Va. “Judges don’t love broad
It’s also important to have “eyes wide open, because this is
absolutely something for which you’re going to receive pushback
from employees,” says Adam Calli, SHRM-SCP, an HR consul-
tant with Arc Human Capital in Woodbridge, Va.
“Noncompetes are all about risk management,” Calli says.
“But when you decide you want to have an agreement, you’re also
introducing a new risk. You have to really give some hard thought
to the cultural impact and the strategic value.”
Placing limitations on someone’s job prospects is not some-
thing any employer should take lightly, so make sure you know
exactly why you’re considering doing so. “The very first thing I
say to clients is, ‘Tell me why you want one. What are you trying
to prevent or protect?’ ” says Christine V. Walters, SHRM-SCP,
an attorney who heads FiveL Co., an HR consulting practice in
After learning more, Walters often finds that employers aren’t
particularly interested in where former employees go to work.
Rather, they just want to make sure departing workers don’t take
client lists or other trade secrets with them. “In those instances,
I respond that what you want is a nondisclosure agreement,”
she says. “Other times they’ll tell me they don’t want someone
to steal people or clients. Then what you want is a nonsolicita-
Also think long and hard about how to react to violations.
Employers that pick and choose the people for whom they enforce
the agreements may send the message that they are not serious
about the restrictions, according to Harold Datz, an employ-
ment law professor at Georgetown University and The George
Washington University law schools in Washington, D. C. And
they open themselves up to discrimination claims if, even inad-
vertently, their enforcement affects one protected group over
“There’s a lot more to noncompetes than simply handing a
new employee a piece of paper to sign,” Datz says.
Rita Zeidner is a freelance writer in Falls Church, Va.
of workers have
in their careers.
of employees are
of workers with no college
degree are covered under
of those earning less
than $40,000 have
agreed to noncompete
Placing limitations on someone’s
job prospects is not something
any employer should take lightly,
so make sure you know exactly
why you’re considering doing so.