Protecting the business where a covenant is unavailable.
Esshaki Legal Media TeamCurrent as of March 2024
As non-compete enforceability narrows, employers rely on measures that remain
available.
Confidentiality and trade secret protection, which is unaffected by
non-compete restrictions in nearly every state.
Non-solicitation of customers, narrower and more widely enforceable,
particularly when limited to customers the employee actually served during a
defined lookback period.
Non-solicitation of employees, generally enforceable, subject to antitrust
limits between businesses.
Notice periods and garden leave, with the employee paid and relieved of
duties. Defensible because the employee is compensated, and effective because
information goes stale.
Forfeiture for competition in deferred compensation and equity, where
permitted. Several states treat these as restrictive covenants subject to the
same analysis; others apply an employee choice doctrine permitting forfeiture
where the employee voluntarily elects to compete.
Retention structures that make departure expensive rather than unlawful.
Operational measures. Team-based customer coverage rather than single
relationships, restricted access to full customer data, and documented
onboarding of client relationships to the firm rather than the individual.
Assignment of inventions and prompt registration of intellectual property.