The law of restrictive covenants is shifting quickly. What a non-compete says and what a court will enforce have never been further apart.
The gap between what a non-compete says and what a court will actually enforce has never been wider. A wave of legislative and regulatory activity has narrowed the reach of restrictive covenants, and several states now decline to enforce them against all but a small class of employees.
For the executive holding an offer and a threatening letter, this matters enormously. Many covenants are overbroad on their face — unlimited in geography, indefinite in duration, or unsupported by adequate consideration. Overbreadth is not a technicality; in many jurisdictions it is fatal to enforcement.
The cease-and-desist letter remains the employer's favorite instrument precisely because it costs little and frightens much. But tone is not law. A measured reply from counsel, grounded in the governing standard, resolves the majority of these disputes before they ever reach a courtroom.
The lesson for executives is to move deliberately, not fearfully. Assess the covenant against the law that actually applies, structure the transition with care, and give your new employer the comfort of a considered legal position. The right to work is more robust than most letters suggest.
This article is provided for general information only and does not constitute legal advice. For counsel on your specific circumstances, please speak with a partner.