Contact Us
Categories
- FTC
- Emotional Support Animals
- Service Animals
- Employee Agreement
- remote work
- Federal Trade Commission
- LGBTQ
- Minors
- United States Department of Justice ("DOJ")
- work from home
- Arbitration
- Workplace health
- Trade Secrets
- Corporate
- Center for Disease Control
- Americans with Disabilities Act ("ADA")
- FFCRA
- Opioid Epidemic
- Occupational Safety and Health Administration (“OSHA”)
- COVID-19
- Families First Coronavirus Response Act
- H.R.6201
- Health Care Law
- IRS
- Paid Sick Leave
- Temporary Leave
- Treasury
- Coronavirus
- Worker Misclassification
- Labor Law
- Overtime
- Kentucky Unemployment Insurance Commission
- Sexual Harassment
- FMLA Retaliation
- overtime rule
- Employer Wellness Programs
- Employment Non-Discrimination Act ("ENDA")
- Genetic Information Nondiscrimination Act ("GINA")
- Independent Contractors
- Kentucky minimum wage
- Minimum wage
- Paid Time Off ("PTO")
- Sick Employees
- Wage and Hour
- Employee Benefits
- Employment Discrimination Laws
- ERISA
- Human Resource Department
- Kentucky Civil Rights Act (“KCRA”)
- OSHA
- Overtime Pay
- ADA Amendments Act of 2008 (“ADAAA”)
- Adverse Employment Action
- Americans with Disabilities Act
- Bring Your Own Device
- BYOD
- Civil Rights
- Compliance
- copyright
- Department of Labor ("DOL")
- EEOC
- Employee Handbook
- Employee Misconduct
- Employment Law
- Fair Labor Standards Act (FLSA)
- Family and Medical Leave Act (“FMLA”)
- Intellectual Property
- National Labor Relations Act (NLRA)
- National Labor Relations Board (NLRB)
- Pregnancy Discrimination Act
- Social Media
- Social Media Policies
- Title VII of the 1964 Civil Rights Act
- U.S. Department of Labor
- U.S. Equal Employment Opportunity Commission (“EEOC”)
- Uncategorized
- Union
- Volunteer
- Work for Hire
- Young v. UPS
- Amazon
- Department of Health and Human Services
- Federal contractors
- Kentucky Labor Cabinet’s Occupational Safety and Health Program (KOSH)
- Micro-unit
- Portal-to-Portal Act of 1947
- Security Checks
- Security Screening
- Specialty Healthcare & Rehabilitation Center of Mobile
- U.S. Supreme Court
- Cloud
- Creech v. Brown
- EEOC v. Hill Country Farms
- Lane v. Franks
- Non-exempt employees
- Crystalline Silica
- Equal Employment Opportunity Commission v. Kaplan Higher Education Corp.
- Illness and Injury Reports
- Kentucky Wage and Hour Act
- Mine Safety and Health Administration ("MSHA")
- Northwestern
- Permissible Exposure Level ("PEL")
- Shazor v. Prof’l Transit Mgmt.
- Web Content Accessibility Guidelines
- Whistleblower
- WorkSmart Kentucky
- "Ban-the-box"
- 2013)
- At-will employment
- Berrier v. Bizer
- Bullying
- Chapter 11 Bankruptcy
- Chenzira v. Cincinnati Children’s Hospital Medical Center
- Citizens United v. Federal Election Commission
- COBRA
- Companionship services
- Compensatory time off
- Conestoga Woods Specialties v. Sebelius
- Consumer Credit Protection Act (“CCPA”)
- Davis-Bacon and Related Acts
- Defense of Marriage Act (“DOMA”)
- Drug-Free Workplaces
- Earnings
- EEOC v. Fabricut
- EEOC v. The Founders Pavilion
- Ehling v. Monmouth-Ocean Hospital Service Corp.
- Federal Stored Communications Act (“SCA”)
- Giant Food LLC
- Government employees
- Government shutdown
- Health-Contingent Wellness Programs
- HIPAA
- Home Health Care Workers
- Job applications
- Jury duty
- Kentucky Department of Workers’ Claims
- KYSHRM 2013
- Mandatory vaccination policies
- Maternity Leave
- McNamara O’Hara Service Contract Act
- Medical Exams
- NFL Bullying Scandal
- Participatory Wellness Programs
- Payroll
- Pennington v. Wagner’s Pharmacy
- Pension Plans
- Private employers
- Sebelius v. Hobby Lobby Stores
- Senate Bill 157
- SHRM
- Small Business Administration (SBA)
- United States v. Windsor
- Violence
- Wage garnishment
- Contraceptive Mandate
- Defamation
- Employee Forms
- Employee Hazards
- Employee of the Month Programs
- Employee photographs
- Employee Training
- Employer Group Health Plans
- Employer Mandate
- Employment Practices Liability Insurance
- Endorsements
- Federal Workplace Agencies
- FICA
- Form I-9
- Freedom of Speech
- Gatto v. United Airlines and allied Aviation Services
- House Labor and Industry Committee
- KRS 391.170
- Litigation
- Madry v. Gibraltar National Corporation
- Megivern v. Glacier Hills Incorporated
- Motivating Factor
- Obesity
- Online Account Protection
- Online Defamation
- Patient Protection and Affordable Care Act
- Play or Pay
- Record Retention
- Reference checks
- Religious Employer
- Right to Work Bill
- Sequester
- severance pay
- Social Media Ownership
- Supervisor
- Supplemental Unemployment Compensation Benefits
- Tangible employment actions
- tax refund
- Telecommuting
- Title VII retaliation cases
- Troyer v. T.John.E Productions
- U.S. Citizenship and Immigration Services
- Unfair Labor Practice
- United States v. Quality Stores
- University of Texas Southwestern Medical Center v. Nassar
- Vance v. Ball State University
- Crisis Management
- Employee Arrests
- Job Description
- Job Requirement
- Kentucky’s Whistleblower Act
- Municipal Liability
- PhoneDog v. Kravitz
- posting requirements
- Public Sector Liability
- social privacy laws
- Strategic Enforcement Plan (SEP)
- White v. Baptist Memorial Health Care Corp.
- Wilson v. City of Central City
- Workplace Politics
- Class Action Waivers
- Criminal Background Checks
- Employee Performance Reviews
- Employee Personnel Files
- Federal Arbitration Act (FAA)
- Federal Department of Labor
- Informal Discussion Letter (“EEOC Letter”)
- Kentucky Labor Cabinet
- Labor and Pensions ("HELP")
- Salary Threshold
- Social Networking Online Protection Act (SNOP)
- Workplace Discrimination, Harassment and Retaliation
- Business Insurance
- Communications Decency Act
- Employee Contracts
- Hiring and Firing
- Hosanna-Tabor Opinion
- Insurance Coverage
- Internet & Media Law
- Internet Defamation
- National Labor Relations Act
- Non-Compete Agreement
- Retaliation by Association
- Unemployment Benefits
- Uniformed Services Employment and Reemployment Rights Act
- USERRA
Complete Your Non-Compete: Helpful Drafting Tips, cont.
Earlier this week, I discussed the importance of tailoring non-compete agreements to ensure enforceability and provided some factors to consider when drafting. Below are four more factors that should help you create a strong non-compete agreement.
3) The history of the employment relationship
Know who you are dealing with. Is the subject employee a lifelong, key member of the business? Or, was his employment fairly short-term, after the business was established? Did you train the employee so that he would be invaluable, or are his skills a dime a dozen? These things may be hard to predict at the start of one’s employment. Keep in mind that a non-compete agreement is a bargained-for document. In the event that an employee changes positions or gets in on a top-secret project, consider possible revisions to his non-compete agreement. Always think about not only what an employee can do to help your business, but also what he could do to hurt your business in the event he no longer works there. Lesson – keep the agreement fresh.
4) The interests the employer can reasonably expect to protect by the execution of the non-competition agreement
If the employee is hired by a competitor, what effect will it have on your business? What do you stand to lose? When drafting a non-compete, do it in a manner that affords the necessary protection to your business, but does not do more than reasonably necessary. Sure, driving out all competition would be nice, but such is not the purpose of a non-compete. Lesson – identify clearly what you are attempting to protect and only include those matters that really need protection and explain why.
5) The degree of hardship the agreement imposes upon the employee
The goal of a successful non-compete agreement is not to punish the employee who is leaving. If the employee abides by the restrictions in the agreement, will he be able to find gainful employment? Or, will he be forced to start his career over and depart from his education, training, and experience? Lesson – include language whereby employee acknowledges and accepts hardships.
6) The effect the agreement has on the public
In a free market, the principle that competition is beneficial to society is highly regarded. If an agreement hinders services or goods so that the public suffers, the court will likely find it unenforceable. Lesson – make clear in your agreement that neither party intends to inhibit commerce and that neither believe the agreement will inhibit commerce.
If an employee challenges the enforceability of their non-compete agreement, a Kentucky employer may fare far better than employers in other states. Some states follow a strict “no-modification” approach, so that an agreement must be “all-or-nothing”; enforceable or disregarded. Luckily, in Kentucky, if non-compete provisions are overly-broad, courts will modify or reform the unreasonable covenants. Of course, doing so will require court involvement and expenses. Avoid this by keeping the above six principles in mind each and every time you pull a non-compete agreement from the HR files.
Stephen G. Amato is a member of McBrayer Law and is located in the firm’s Lexington office. Mr. Amato focuses his practice on civil litigation with an emphasis in all areas of labor and employment law. Employment-related issues with which Mr. Amato has particular experience include the enforcement of no-compete agreements, the investigation and defense of discrimination claims, and the negotiation and enforcement of severance agreements. He can be reached at samato@mcbrayerfirm.com or (859) 231-8780, ext. 1104.
Services may be performed by others.
This article does not constitute legal advice.