The dust from the election is still settling, but it appears likely that President Donald Trump will be the next leader of our nation. With new leadership, often comes a change in laws that can have a direct impact on our economy. When it comes to businesses, one of the areas that has received recent attention involves the use of noncompete agreements.
The current administration has taken a bold stance, pushing to block the use of these contracts. Although President Trump has yet to take an official stance, we do know that a Trump-appointed federal judge blocked the Federal Trade Commission’s attempt to ban these agreements. We also know that President Trump has relied on these agreements in his own business dealings. As such, it seems likely that his administration would continue to support use of this legal tool to help protect business interests.
With this in mind, it is important that business owners who plan to use this tool do so wisely. Noncompete agreements are a strategic tool to protect your business from potential risks posed by former employees. These agreements, when crafted and implemented correctly, can help protect your business’ interests. The following will provide business owners with some tips on how to better ensure a well-crafted agreement that meets their needs.
What provisions should I use within a noncompete agreement?
To be effective and enforceable, a noncompete agreement should contain certain essential elements. These may include:
- Scope of Activities: Include clearly defined restrictions. This could include working in specific roles or industries where a former employee could directly compete with your business.
- Geographic Limitations: Specify the geographical area where the restrictions apply. The area should be reasonably limited to regions where your business operates and needs protection.
- Duration: The time period for which the restrictions apply must be reasonable. Typically, periods of six months to two years are considered enforceable, depending on the industry and the employee’s role.
It is also important to note that for a noncompete to be valid, there must generally be a clear exchange of value. For new employees, the job offer itself may constitute consideration. For existing employees, additional compensation or benefits may be necessary.
How can I make sure my noncompete agreement withstands a legal challenge?
To better ensure that a noncompete agreement withstands legal challenges, consider the following tips:
- Ensure Reasonableness: The agreement must be reasonable in scope, geography, and duration to protect legitimate business interests without overly restricting an individual’s ability to find employment.
- Tailor to Individual Roles: It can also help to customize the noncompete clauses based on the specific role and duties of the employee. Higher-level employees with access to sensitive information may warrant stricter clauses compared to others.
- Legal Review: It is wise to have your noncompete agreements reviewed by a lawyer who specializes in employment law in your jurisdiction. This will help to better ensure compliance with local laws and increase the likelihood of enforceability.
Noncompete agreements can serve as a critical tool for protecting your business from potential threats posed by former employees who might otherwise use proprietary knowledge or trade secrets to benefit competitors. By incorporating the key provisions discussed and following the practical tips provided, you can craft a robust noncompete agreement that not only protects your business interests but also stands up to legal challenges if contested.
