You don’t need a lawyer to draft a non-compete agreement. But to avoid potential drawbacks in litigation it is best to get an experienced lawyer’s help in drafting a noncompete agreement. Non-compete agreements can create a lot of stress. And these agreements can lead to expensive litigation. The world is changing rapidly, and with a global economy, businesses face new challenges in retaining employees and protecting trade secrets, processes, techniques, ideas, and other proprietary or sensitive information. If you are concerned about your non-compete agreement, you should contact a lawyer.
A lawyer will be helpful because they will consider what it is best for your business in drafting the noncompete and will have an understanding of what is reasonable. While a court may modify an unreasonable term or terms of a non-compete agreement, it can also invalidate an entire agreement if it finds credible evidence that the employer deliberately included overly broad language that renders an agreement unreasonable and oppressive.
Additionally, a lawyer that is experienced with drafting non-compete agreements will be able to use industry, business and employee-specific parameters to show the existence of special facts over and above ordinary competition. You cannot simply restrain ordinary competition. A former employee may provide ordinary competition by simply being intelligent, personable and hardworking in a new job. Special facts give that employee an unfair advantage in competing with you. Maybe you provided specialized training to the employee or imparted a unique knowledge or skill through specialized training. With this information you would have a good chance of enforcing a non-compete that prevents that employee from leveraging this training against you in a new job.
Or maybe the employee was given access to trade or business secrets or other confidential information. You have a legitimate business interest in keeping that employee from using your trade or business secrets or other confidential information in competition against you. Lastly, the employee has become the face of your company to customers. Sometimes employees think the employer’s customers are actually their customers because they are the customers’ main contact. However, they are customers only because your company offers a service or product the customers are buying. A lawyer would be able to use this information in advocating for your agreement.
By having a lawyer look or draft your non-compete agreement, they be able to be specifically cite the state law under which governs non-compete agreements. This may seem like a minor point but some states do not recognize non-compete agreements. You will look stupid in trying to enforce an invalid agreement in a court of law and could be liable for unfair business practices, entitling the employee to restitution and their attorney’s fees.