of your company’s goodwill to frame the geographic
parameters of the non-compete. After such a thorough
exercise, your company’s non-solicitation and/or non-
compete agreements should be enforceable if you ever
need to pursue a thieving employee. Like any good
contract, however, it is recommended that you consult
Non-solicitation agreements are a low-level non- with your counsel at least every five years to confirm
compete restriction. Like the name suggests, they that your trade secrets are still valid and to ensure that
prohibit employees from soliciting a specifically- no legal developments affect enforceability.
identified group of persons (typically customers)
for specified purposes (such as providing services Again, depending on the size and sophistication level
or selling products that the company provides or of your business, you may not require non-compete
sells). Much broader, non-compete agreements often agreements to reasonably protect your company secrets.
contain non-solicitation provisions in the midst of However, if you do decide that level is needed, you
other restrictions on post-employment activities. Non- will also need your counsel to evaluate which of your
compete restrictions typically prohibit an employee employees must sign them because they need to be
from working in the same capacity in a new job uniformly applied. Companies can lose the benefit of
that competes with the company’s business. To be an enforceable non-compete if they don’t require each
enforceable, the restrictive covenants must not exceed employee who has access to their trade secrets to sign
the company’s protectable interest and must comply the non-compete, as they are selectively deciding who
can have unlimited use of the secrets while restricting
with legal precedent in avoiding overbroad language.
others. It is not a reasonable protective measure to let
The enforceability of a non-compete agreement is some employees walk out with your company’s secrets
tested by the reasonableness of the restrictions as while prohibiting others. Thus, the company is waiving
to time, scope, and geography. While volumes can its protectable interests when it chooses to only have its
be written about these frequently-litigated issues, top salespersons (for example) sign the non-compete
your trusted counsel with experience in this area will agreement because it doesn’t deem the other employees
conduct due diligence as to the identity and “life a threat. Those least effective salespersons still have
cycle” of your business secrets to determine the most access and can decide, perhaps without legal penalty,
reasonable time restriction, the applicable employee’s that they want to take your secrets to start their own
scope of duties to define the prohibited scope of post- business. You are now forewarned to be fore-armed.
employment activities, and the geographical reach
to reasonably protect your secrets. Depending on the
type of information you need to protect and the level
of employee whose post-employment activities you are
trying to restrict, your company may only need non-
solicitation restrictions.
We are proud of RBE partner Elizabeth
Green, who applied to succeed Justice Robert
Rucker on the Indiana Supreme Court. Justice
Rucker retired this spring after 26 years on
the bench. Beth made it to the semifinalist
round of the candidate interviews. On June
12th, Governor Holcomb announced his
appointment of Wabash Superior Court
Judge Christopher Goff to the Court.
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Riley Bennett Egloff LLP - June2017