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Draft Non-Competes To Withstand Blue Penciling

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November 17, 2022

Non-compete agreements are frowned upon as a matter of public policy because they restrict individuals right to find work and support themselves, writes Robert Horton of Bass, Berry & Sims. This is a real public policy issue, and it results in different approaches toward non-competes in every state. Even states that view non-competes favorably require employers to have a protectable interest that justifies restrictions. In some states courts will rewrite an overly broad agreement to narrow the restrictions and in others will strike provisions they view as too broad (“blue penciling”). Horton advises: being mindful of the approach to non-competes in the states your employees are located; only requiring non-competes for employees who really do have access to confidential information that consequential or relationships with customers that could be used by a competitor; considering whether a non-solicitation agreement in which the employee agrees not to do business with customers of your business; drafting non-competes so they can withstand blue penciling if necessary, i.e., by adding multiple provisions regarding length and geographic scope so something will be left if the court strikes some of the provisions.

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