Is Your Company’s Non-Compete Agreement Enforceable? The Answer May Surprise You

DuPage County business law attorneysBusiness owners often use non-compete agreements to protect their brand and trade secrets. Previously reserved for high-level executives, these contracts have even made their way into the “lower-income” sector. However, state law prohibits the use of non-compete agreements in some situations. Furthermore, such agreements must meet certain criteria to be considered enforceable by the courts. Where does your company stand on its use of “covenants not to compete?” The answer may surprise you. 

What is a Non-Compete Agreement? 

While non-compete agreements are not stand-alone documents, they do frequently make an appearance in other types of contracts, such as employment agreements and contracts for the sale or purchase of a business. Used to protect things like a company’s trade secrets, marketing tactics, client or customer data, and other sensitive business information, they prohibit the signer from working in a specific industry, trade, or geographical location. It may also prohibit the singer from working with specific competitors (prospective employers). 

Examining the Rules for Non-Compete Agreements

Prior to the beginning of 2017, non-compete agreements only needed to be considered “reasonable” to be enforceable. As defined by the Illinois Supreme Court, non-compete agreements are only reasonable when they: 

  • Require no restrictions greater than necessary to ensure the protection of an employer’s legitimate business interest (which can only occur if a legitimate business interest exists);
  • Do not impose undue or unnecessary hardship on the employee; and
  • Are not directly or indirectly injurious to the public.

It is important to note that the rules of enforceability may not always be applied the same in each situation. For example, a non-compete agreement may meet all of the rules and requirements, but if the employee did not acquire confidential information during their employment, the contract may be considered void and unenforceable by the courts. 

The passage of the Illinois Freedom Act, which occurred in 2016, places some additional restrictions on non-compete agreements as well. According to Illinois state law, low-income employees (defined as those who make the greater or either minimum wage or $13 an hour) cannot be asked to enter into a non-compete agreement, even if they have access to sensitive or confidential trade or industry secrets. However, this law does not apply to non-compete agreements signed before the Act’s passage. In that case, the original criteria would apply. 

Our Wheaton Business Law Attorneys Can Assist Your Company with an Enforceable Non-Compete Agreement 

To get ahead in today’s competitive market, business owners need to carefully protect their trade and industry secrets. Non-compete agreements can help, but only if they are truly enforceable. Backed by more than 40 years of experience, the DuPage County small business lawyers at Stock, Carlson, Oldfield & McGrath, LLC can review your current agreement to determine its enforceability and assist you with closing loopholes. If you have not yet drafted a non-compete agreement, we can help to ensure yours is enforceable, right from the start. Schedule a personalized, no-obligation consultation to learn more. Call 630-665-2500 today.

Source:

https://www.usatoday.com/story/money/2017/05/27/noncompete-clauses-jobs-workplace/348384001/

https://www.daily-chronicle.com/2017/10/26/state-ag-files-lawsuit-against-check-into-cash/ao65nak/

http://www.illinoiscourts.gov/opinions/supremecourt/2011/december/111871.pdf

 

The Basics of Confidentiality Agreements

Illinois business law attorney, Illinois employment lawyer, Illinois business lawyerIf you are running a business and have a product or service that isn't offered elsewhere or is relatively unique, chances are you have considered a confidentially agreement. All businesses operating in an industry in which secret formulas or recipes could compromise the ability of the business to make a profit should have a confidentiality agreement in place with employees. It is best that this agreement is considered and signed before an employee begins work in earnest — any hesitation can lead to murky legal waters regarding the divulgence of company-specific products or services.

The reason that confidentiality agreements need to exist separation from patents or copyrights is because they, in large part, protect trade secrets. The difference between trade secrets and copyrighted products or processes is that a trade secret is considered intellectual property. Confidentiality agreements are implemented in addition to the protections afforded by copyright infringement laws, however, because trade secrets are intellectual property that is considered non-public. Laws regarding intellectual property are complicated to enforce and often confusing for both parties involved. Confidentiality agreements allow for some of this complication to be ironed out.

The importance of such agreements cannot be overstated. It is estimated that the theft of trade secrets costs the American economy billions of dollars annually. There are federal criminal laws, in large part monitored and enforced by the Federal Bureau of Investigation, to combat and punish such theft, but because of the wide scope of incident and the myriad of red tape that must be cut in order to prosecute such cases, these incidents are often best left to be handled by the parties involved. This is where confidentiality agreements come into play.

Confidentiality agreements can also be implemented as part of settlements between employees and employers. In this case, for example, a confidentiality agreement could be invoked to keep a disgruntled employee who was fired or who quit from sharing with former colleagues the details of his or her departure.

If you are interested in learning more about confidentiality agreements and if one is right for you, the most important step is to seek legal counsel. Do not go through it alone. Contact an experienced DuPage County business attorney today.

 

Sources:

https://www.washingtonpost.com/blogs/the-fix/post/confidentiality-agreements-how-do-they-work/2011/11/02/gIQAyNryfM_blog.html

http://www.businessinsider.com/protecting-our-trade-secrets-is-essential-for-the-economy-2014-8