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

 

Tips for Protecting Your Interests While Negotiating a Business Contract

Wheaton small business lawyersAlthough there are many key elements to running a successful business, few can outweigh the importance of successful contract negotiation. This single element can determine everything from a businesses’s profit margin for each transaction to the legal recourse that a business owner may take if a client or partner infringes on the company’s intellectual property. As such, it is critical that company owners understand the elements of effective business contract negotiation.

Examining the Five Elements of Contract Negotiation 

An effective business contract should do more than simply state the terms of an agreement; it should detail a reasonable arrangement that mutually benefits all involved parties, and it should clearly define the environment and conditions under which the parties are willing to operate. To reach such an agreement, business owners are encouraged to implement all five elements of contract negotiation, which include:

  1. Prepare for the Negotiation Process – To create a mutually beneficial contract, you must first prepare for the negotiation process. Start by determining their strengths and weaknesses and determine how they might use these in negotiations. Consider your own strengths and weaknesses as well, and determine your aims for the contract (what do you want to accomplish?). Also, know your deal-breakers and decide what you are willing to compromise on during the negotiation process;
  2. Clarify the Details – Once you have an idea of what should be in the contract (these are the terms under which you are willing to operate), it is important to ensure you closely examine all of the details. Are your conditions and expectations clear? Are the financial terms easy to understand? Is there any verbiage that may confuse your potential client? When does the contract come into effect, and when does it end? What happens if one party defaults on their part of the contract, and is that clearly stated? For best results, have your attorney examine the details and wording of the contract, as they can help you avoid potential loopholes and confusing or cloudy terms or details;
  3. Exert Pressure to Encourage Contract Signing – Parties typically only sign a contract when they feel confident that they can benefit from the contract and its terms – but a successful negotiation should take it one step further. The other party should feel as though they are losing something by not signing the contract. Know your market, your other options, and ensure you have a seasoned attorney to assist you with this element. 
  4. Offer Concessions (When and Why) – Concessions are not an automatic element in contract negotiations. Instead, they are usually added at the end, when parties feel a deal is possible and they are ready to close. Try to offer concessions that provide a great deal of benefit to your partner at a low cost to you, and determine if the concessions offered by the other party are beneficial enough to your company;
  5. Close the Deal – Once all the parties agree on the major aspects of the contract, it is important to close the deal. By not asking when you are truly interested and see a possible future for your partnership, you leave money on the table. 

Contact Our Wheaton Small Business Lawyers

At Stock, Carlson, Oldfield & McGrath, LLC, we understand the challenges that small businesses face because we are one ourselves. Backed by more than 40 years of experience, our seasoned DuPage County small business attorneys can protect your company’s interests during contract negotiations, and we can assist you in closing the deal. Call 630-665-2500 and schedule your consultation with our offices to get started today. 

Source:

https://smallbusiness.chron.com/negotiate-business-contract-61994.html

Illinois Sues a Second Business Over Non-Compete Agreement – What Employers Need to Know

Illinois small business lawyerWhile most small businesses are only interested in making ends meet, there are large corporations and franchises out there, trying to take advantage of blue-collar workers. Sadly, when employees are paid low wages and asked to fill out a non-compete agreement, they may find themselves stuck, with no way out.

That is why Illinois now has a law on non-compete agreements; two companies have been sued in the past year for violating it. Learn more about this law and what it could mean for your company, and discover how an experienced business law attorney can help you avoid legal problems over improper use of non-compete agreements.

Understanding the Purpose of a Non-Compete Agreement

Non-compete agreements are not meant to keep wages low or violate an employee's rights. Instead, they are supposed to ensure that a company's reputation and trade secrets are protected from its competitors. That is not to say that low-wage paying companies are lacking in trade secrets or that their reputation should not be protected, yet by forcing low-wage employees to sign non-compete agreements, they are protecting their company in a way that is detrimental to the employee. In a country where wages have become stagnant, unfair treatment of low-wage employees is an offense that Illinois is no longer willing to overlook.

Protecting Your Company with a Non-Compete Agreement

If you pay your employees at least $13 per hour, the state will permit you to use a non-compete agreement to protect your company's reputation and/or trade secrets. However, it is critical that you understand the risks associated with developing such an agreement without proper legal assistance. Verbiage, particularly when it comes to issues that might be considered a violation of the employee's rights, must be carefully thought out and well-versed. There are also certain elements that cannot be added to a non-compete agreement. Ensure you do not make a costly mistake by hiring an experienced attorney to draft your non-compete agreement.

Contact Our DuPage County Small Business Attorneys

At Stock, Carlson, Oldfield & McGrath, LLC, we understand the challenges that small businesses face in today's competitive market. Dedicated and experienced, our DuPage County small business attorneys can listen to the goals and concerns you have about trade secrets and potential market competitors. Provided it is warranted, we can also help you draft a non-compete agreement to protect your company's financial future. Learn more by scheduling a personalized consultation. Call 630-665-2500 today.

Sources:

http://www.chicagotribune.com/business/ct-biz-illinois-payday-lender-noncompete-lawsuit-20171026-story.html

https://www.nytimes.com/2017/10/25/business/economy/illinois-noncompete.html