Often times a non-compete agreement will be incorporated into an employment agreement. Sometimes, employees will allege a response to a non-compete violation that the employer violated the employment agreement first and, therefore, excuse the non-compete provisions due to the employer’s breach of the employment contract, of which the non-compete agreement was a part. The lesson for employers here is that if you incorporate your non-compete agreement into an employment agreement, make sure to utilize language that indicates that the non-compete agreement is separate and independent covenant from the employment agreement. The better practice is to have the non-compete agreement as a separate and independent agreement from the employment agreement to ensure that an allegation by the employee does not jeopardize the non-compete agreement.
If you are an employee, analyze your non-compete agreement and the context of whether or not the employer may have breached their own obligations as part of the employment agreement if you are looking for a defense to a non-compete that is incorporated into your employment agreement. Sometimes courts have determined that it will not issue a preliminary injunction and order the employee to not compete because there is an issue of fact concerning whether the employer breached its other obligations under an employment agreement that contained the non-compete agreement.
If you require assistance in drafting a valid non-compete agreement contact an experienced non-compete attorney at Traverse Legal. If you are an employee who has questions concerning the validity of your non-compete agreement that is part of an employment agreement, contact an experienced non-compete attorney at Traverse Legal.