Lawyers routinely write about the legalities of noncompetes. Thus, everyone is well aware that, legally, a Texas employer can preclude a former employee from soliciting customers or working in the industry for years after termination so long as the employee was privy to confidential information and the noncompete's scope isn't too over the top. Employers spend lots of time and money focused on these legalities which, while necessary, are actually pretty simple.
Not so much is written about the realities of noncompetes, meaning the day-to-day actions of the parties that can support or negate actual enforcement of the noncompete's restrictions. This is unfortunate because locally-elected district court judges decide the fate of noncompetes and – here's reality check #1 - these judges usually spend about 5.2 seconds glancing at the noncompete document and the rest of the time focused on, well, the realities of the situation.
Reality check #2 - judges don't necessarily care what the document says the employer can legally do; instead, they care about the real life consequences of doing what the employer is asking them to do. They want really good reasons – both legal and non-legal - for signing an order that keeps a recently-fired employee from working to support a family, or talking to a colleague that he's known for twenty years, or giving her long-held entrepreneurial dreams a shot. So, the reality is, employers must be able to explain how and why they deserve to impose the restrictions they seek, and why the former employee deserves to be restricted, regardless of the noncompete document.
Reality check #3 - Employers often fail to get injunctive relief not because of what they say or do in court, but because of what they said or did days, months or even years ago. The prime example is how noncompetes always say that certain information is new and confidential. But, if the employer routinely allows any and all employees to access this so-called "confidential" information without any security controls, is it really necessary to keep someone out of a job for the next two years to "protect" its confidentiality when any current employee can pull it up any send it to a competitor in a matter of minutes?
Any lawyer can spend hours drafting a noncompete document. Good noncompete counsel, however, scrutinize whether the realities of the employer's situation actually supports enforcement of the noncompete. If not, they spend more time figuring out how their client can create a reality that does.
Part II of "Reality Bites" will discuss some common employer "realities" that keep employers from enforcing noncompetes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
