Employers don’t spend enough time considering their non-competes. That’s an overly broad statement, but it is usually the rule not the exception. The reason that happens kind of makes sense. Most employers haven’t been down the road of enforcing a non-compete. The provision at issue may be a one-off that’s included in one employment agreement or one that has been altered over time. Point is there is no judicial experience with the non-compete. The employer hasn’t actually seen the non-compete in action so there is no history.
What I seen in most cases is an attempt to make the non-compete as broad as possible, which kind of makes sense as well. The scenario is the execution of a new employment agreement with a new employee. The employer want the agreement to be as broad as possible and the employee may not be focused on the actual details – just the existence of the non-compete itself. Employees don’t usually negotiate the terms of a non-compete – the real negotiation is usually over whether the employment agreement is going to contain the provision or not. So there’s really not much dickering over the terms – which actually might help the employer.
So, the employee departs and starts to complete. The former employer tracks down the employment agreement that was signed potentially years before and was potentially drafted by a different in house counsel or outside lawyer. The former employer goes to the trusty lawyer who is concerned the non-compete is overly broad and a judge in Collin County or Dallas County will not like it.
A lawyer trying to enforce a non-compete has a lot of challenges. Yes they are enforceable, yes the law has improved in Texas over the years, but that doesn’t mean Judges like them. A lawyer want a non-compete that is narrow – it covers the work the employee actually does and who he/she actually worked with. It does not need to tie to all the things the employer does and all the customers it has or may ever have.
An employer is putting itself at a disadvantage and in a defensive posture when it comes to an overly broad non-compete. At best, the court could reform the non-compete through a temporary restraining order or temporary injunction. At worst, the court could deny the relief entirely. Don’t play defense – think narrow and don’t be greedy when drafting a non-compete.