Your Candidate's Non-Compete Looks Weak. Check the Clauses That Outlast It

The non-compete gets the attention because it is the clause that sounds like a prohibition on earning a living, and because it is the one most likely to be struck down, narrowed, or ignored by a court that finds it overbroad. That attention is misplaced more often than not. When someone hands you an agreement and asks whether a move is safe, the covenant that ends up controlling the first year of the new job is usually one of the quieter ones, sitting three paragraphs further down, drafted more modestly and therefore far more likely to hold.

Customer and coworker non-solicitation, which courts tend to respect

A non-solicit asks for less than a non-compete, and that is precisely why it survives. The employee can work anywhere, in the same industry, doing the same job; what is restricted is reaching back to a defined group of accounts or colleagues. Courts across most states treat that as a legitimate protection of relationships the employer paid to build. The careful reader checks scope: whether the covered customers are ones the employee personally serviced, or every account in the company database; whether prospects are included; and whether the clause reaches passive responses to an inbound call, or only active outreach.

Coworker non-solicitation deserves a separate reading, because the drafting varies more than people expect. Some versions bar recruiting only; others bar hiring, which means an old colleague who applies on their own is still off limits. If your candidate is going to build a team, that distinction decides whether the first three hires are available. Note also who is covered. A clause limited to employees the person supervised is workable. One covering anyone employed during the last two years, at any location, is a real constraint on a growing company.

Confidentiality and trade secrets, where the obligation has no end date

Confidentiality obligations rarely expire, and trade secret protection exists independently of any contract at all, under state law and the federal Defend Trade Secrets Act. A court will enforce a reasonable confidentiality clause without much argument, because it restrains disclosure rather than employment. The question worth asking is what the agreement defines as confidential. Many definitions sweep in everything the employee learned, including general skill and industry knowledge that the law would not protect on its own. That gap between contract language and enforceable secrecy is where disputes begin, and it is checked by reading the definition, not the heading.

The practical check is behavioral. Documents copied to personal email in the last weeks, a contacts list exported from the customer system, a deck kept for reference: each turns a survivable move into a case with evidence. Counsel on both sides know this, and the forensic review of a departing employee's laptop is routine at any company with something to protect.

Garden leave, training repayment, and invention assignment

Garden leave converts a restriction into a paid absence, and that is why it holds. The employee remains employed through a notice period, drawing salary, excluded from the office and from clients. Courts have little reason to intervene when nobody is being deprived of income, so the clause tends to do exactly what a struck-down non-compete failed to do. Check the length, whether the employer can shorten it at will, whether bonus and equity continue to vest during it, and whether the new employer is prepared to wait out a start date that may sit months away.

Training repayment agreements and invention assignment clauses operate on different logic but share the same durability. A repayment provision asks for money, not silence, and is generally enforced if the amount is tied to actual cost and amortizes over a defined period. Read the trigger, since some pay back on any departure, including a layoff. Invention assignment transfers what the employee created, and several states limit it to work made with company resources or within the company's business. If your candidate has a side project, that boundary matters more than the non-compete ever will.

Reading the agreement as one document

These clauses interact. A weak non-compete paired with a strong non-solicit and a twelve-week garden leave produces a real delay and a real restriction on the book of business, even though the headline restraint is unenforceable. The Federal Trade Commission is responsible for unfair methods of competition at the federal level, and the treatment of non-competes has shifted in recent years, but none of that movement touches confidentiality, invention assignment, or repayment terms. A careful reader takes the severability clause seriously, works out what remains after the worst clause is cut, and prices the move against that remainder.

Before an offer goes out, someone should read the agreement end to end and write down, in plain terms, what the first year actually looks like: who cannot be called, who cannot be hired, what cannot be used, when work can start, and what is owed on departure. That memo is what the candidate lives with, and it is cheap to produce compared with the alternative.