If judges are not faced with gross and obvious misconduct on the part of the outgoing employee, they are generally reluctant to enforce these agreements. Here are some important points you should consider when reviewing your non-compete clause, whether you are the employer or the worker. Under a no-pocher agreement, the former employee is not prohibited from competing with the former employer, but promises not to do business with any of the former employer`s clients for a certain period of time. A no-debauchery agreement can allay fears about losing good or customer base. However, for an employer more interested in protecting trade secrets, the effectiveness of a no-pocher agreement will be limited. As noted in the previous example, a non-compete clause must not only be limited by scale, geography and time, but must also serve a legitimate business purpose of the employer. In other words, an employer cannot require its employees to sign competition bans just to be mean or to prevent workers from leaving – or because the employer does not want to face normal competition in the market. The employer must really try to protect itself against unfair competition, not against all competition. It is important that the commercial objective to be protected is set out in the agreement and that the non-competition clause is effectively designed to protect that interest. If the circumstances indicate that the stated purpose is merely a pretext to limit the former worker`s ability to earn a living, the agreement is unlikely to be valid. The “relevance” of restrictions on the scope, time and geography of an agreement depends on the nature of the employer`s activity and the interest to be protected. A non-competition clause prohibiting a worker from one day returning to work in a sector where the employer works will almost never be applicable, even if it is limited in scope and scope.
Similarly, it is generally not wise to prohibit a former employee from working in a geographic area where the former employee does not have a commercial presence; Nor is it wise to prohibit the worker from working in a sector of activity where the employer does not work. In this way, a non-competition clause in favour of a large undertaking operating in a large number of sectors throughout the country could be applicable if the same agreement, if favoured for the benefit of a more limited regional activity, may not be applicable. .