Non-Compete Agreement Attorneys

Our Employment Lawyers Explain What You Need to Know About Non-Compete Agreements

Your work is more than just a job. Rather, it can impact your current opportunities, the choices you make, and what you achieve. However, non-compete agreements can greatly impact these and other aspects of your life.

Let the non-compete agreement attorneys at Zipin, Amster & Greenberg use their six decades of combined employment law experience to provide the legal knowledge and insights you need.

Understanding the Purpose of Non-Compete Agreements

A non-compete agreement (NCA) is a contract designed to prevent an employee from competing with their employer for a specified length of time.

Also called a covenant not to compete (CNC), these documents are to protect an employer’s legitimate business interests.

This includes:

• Preventing competition – This may be with the employer’s current competition, or future competition from the current employee starting their own competing business.
• Protecting trade secrets or confidential business information – This can include protecting information that gives an employer an advantage in their industry.
• Retaining clients – This protects an employer’s list of clients, their pricing, or other information that may be known by an employee.

However, a non-compete agreement must follow applicable laws to be valid.

This includes ensuring that it contains important details to ensure fairness is achieved for both the employer and employee. For example, a non-compete agreement should not be so restrictive as to hinder the employee’s future employment options.

As attorneys specializing in employment law in Maryland, Washington D.C., and Virginia, it is our job to help ensure that this delicate balance is maintained when parties enter into a non-compete agreement.

Are Non-Compete Agreements Always Legal?

As experienced non-compete agreement attorneys, we ensure we are familiar with all laws and legal requirements for non-compete agreements in Maryland, Virginia, and Washington D.C.

Maryland non-compete laws

Maryland’s laws affecting non-compete agreements are often changing.

For example, recent legislation banned non-compete agreements for certain types of healthcare professionals.

Additionally, a recent Maryland law was enacted to prevent employers from restricting low and mid-level employees from working for a competitor.

Overall, though, Maryland courts evaluate NCAs based on:

• Duration of the restriction
• Geographic scope
• Nature of the restricted activity
• Position and knowledge level of the employee

Virginia non-compete laws

Virginia recognizes non-compete agreements, but places the burden of proof on the employer to show the restriction is reasonable and enforceable.
To do so, Virginia law will ask these questions about the non-compete agreement to see if it’s legally enforceable:

• Is the restraint narrowly drawn to protect the employer’s legitimate business interest?
• Is the agreement unduly harsh or oppressive in curtailing the employee’s ability to earn a livelihood?
• Is the restraint reasonable in light of sound public policy?

If the answer to any of these questions is ‘no’, then there is a good chance the NCA is not legal in Virginia.

Additionally, there are other non-compete laws in Virginia that protect certain workers or industries, such as protections against NCAs for low-wage employees.

Washington, D.C. non-compete laws

Overall, Washington D.C. prohibits non-compete agreements for most employees, with exceptions for those with specific circumstances such as highly compensated employees.

In fact, Washington, D.C. recently enacted one of the strictest non-compete bans in the country under the Non-Compete Clarification Amendment Act of 2022

Under this law:

• Most employees in D.C. are no longer subject to non-compete agreements.
• Highly compensated employees (those earning $150,000+ annually or medical specialists earning $250,000+) may still be subject to reasonable non-competes.
• Prohibited actions include barring moonlighting (holding another job) unless there is a legitimate conflict of interest.
• The definition of a “covered employee” has been clarified.
• Employers must give specific notice at least 14 days before the non-compete is signed or employment starts.
• Violations may result in civil penalties and damages.
• Employers must maintain clear written policies compliant with D.C.’s requirements.

General legal requirements for non-compete agreements

The various laws mentioned above show that there are specific legal requirements for non-compete agreements in different states.

But regardless of where an employee lives and works, there are other legal requirements for non-compete agreements.

For example, NCAs must be limited in both location and duration. If the agreement sets unreasonable time or location limitations on an employee, the agreement may not be enforced by the courts.

Another potential legality issue of a non-compete agreement is being able to clearly define the employer’s legitimate business interests that an NCA can legally protect. This, too, can leave room for interpretation for either the benefit of the employee or the employer.

With such ambiguity often involved, it’s critical to have employment law attorneys who have successfully handled other cases to help you determine the legality of your non-compete agreement.

Who Should Sign a Non-Compete Agreement

As reflected in the laws cited above, non-compete agreements are not always permitted or enforceable.
However, it may be enforceable when an employee’s position gives them knowledge of certain information about a company.

Employees who are often legitimately required to sign a non-compete agreement include:

• Employees who do research or product development work
• Sales or service employees who suggest solutions to problems that customers encounter with the business or their products
• Engineers or drafting employees who do design or engineering work
• Employees who do creative work with trade names, advertising and sales promotion of the business or business products
• Employees in manufacturing, maintenance, and production who oversee or work with the production of machines or other products made by the business
• Employees who have knowledge of the mechanics of products sold by a business

Our non-compete agreement attorneys are happy to help you know whether your position legitimately requires a non-compete agreement.

Key Factors to Consider Before Signing a Non-Compete

Signing a non-compete agreement can have a major impact on your life, both professionally and personally. These impacts may be felt far beyond the terms of the agreement.

So before you sign a non-compete agreement, take some time to understand:

• What exactly is required of you in the document
• Why each restriction of the agreement is needed
• What the legal requirements for non-compete agreements are in your state

Upon further scrutiny, you may discover something questionable or even illegal in the non-compete agreement.

If this is the case, remember: you do not have to accept unreasonable NCA requests from your employer.

This is because a non-compete agreement is only legally allowed to protect a company’s legitimate trade secrets or confidential information, retain clients, and/or to prevent competition for a specific time.

However, don’t rely on your employer’s judgment regarding an acceptable NCA. Afterall, Virginia and other states do not legally require employers to notify individual employees about the validity or enforceability of their non-compete agreements — that responsibility rests with the employee.

Knowing all that is required of you, consulting with an experienced employment lawyer before signing anything can avoid a lot of negative outcomes.

The employment law attorneys at Zipin, Amster & Greenberg can provide you with a clear understanding of the laws, requirements, and protections surrounding non-disclosure agreements.

We’re ready to help you with confusion, doubts, or questions about whether or not you should sign a non-compete agreement.

What to Know When Negotiating a Non-Compete Agreement

Employees who are presented with a non-compete agreement should always ask for time to read over the document.

In fact, it can be helpful to view an employer’s initial non-compete agreement as a ‘first draft’. Doing so will help you realize it can be negotiated and modified before you sign it.

It is also fully within your rights to review the NCA document with an employment attorney. This allows the attorney to use their legal knowledge and experience to identify any points that are illegal or unacceptable.

An employment attorney can also help negotiate a better agreement.

Key negotiating points include:

• Agreement duration – Can the term be reduced from 24 months to 12 months?
• Geographic restrictions – Can geographic restrictions be limited to counties or cities where you actually work?
• Scope of activity – Can restrictions only apply to clients you actively manage or roles that directly compete?
• Severance considerations – Can you secure pay during the restricted period? Will the agreement apply if you are laid off without cause?

Once all non-compete negotiations are made and a final draft is reached, it is still important to confirm that it is a contract you can manage before signing it, since you are going to be bound by its terms once it is signed.

Enforceability of Non-Compete Agreements

If you signed a non-compete agreement but later want to change companies or want to go into business on your own, you may still have options,

For example, your employer may not be able to legally enforce your NCA against you.

However, each non-compete agreement case will depend on its own unique factors. These include the specific language of the agreement, the employee’s job responsibilities, and their future job prospects in light of the restriction.

However, there are important points to keep in mind for anyone trying to be released from a non-compete agreement:

• Does the NCA go beyond protecting legitimate business interests? Was the employer trying to protect something valid, like trade secrets or client goodwill? Or did they go beyond what they rightfully deserved to protect?
• Is the scope of the restriction unreasonable? Is the time and geographic scope in the agreement fair and proportional? Or do the restrictions encompass a scope beyond what the employer should have reasonably imposed?
• Does it impose undue hardship on the employee? Was it truly necessary for the employee to be placed under these restrictions to protect the legitimate interests of the business? Or does the agreement unfairly prevent the employee from earning a living?
• Does it violate public policy or laws? Were all state and federal laws and protections obeyed while also allowing fair competition within the marketplace? Or did enforcement violate laws, harm competition, restrict public access to services, or hinder labor mobility?

If you want help assessing the enforceability of your non-compete agreement, our employment lawyers are ready to provide the legal knowledge and guidance you need.

Challenging a Non-Compete Agreement

If you have signed a non-compete agreement but later realize it is unlawful or is presenting an undue hardship, it’s important to know that you have the option of legally challenging its enforceability.

Here are the steps you can take to help you challenge a non-compete agreement:

Choose a knowledgeable non-compete agreement attorney

With each state’s evolving legal requirements impacting the enforceability of your NCA, you’ll need a non-compete agreement attorney who knows how to examine the current legal validity of the agreement, such as Zipin, Amster & Greenberg.

Examine the agreement together

Your attorney will help you recognize whether the restrictions were legally invalid, such as due to being overly broad or unreasonable. They can also examine whether your position truly involves proprietary information, or if your employer is merely trying to eliminate marketplace competition.

Negotiate an agreement waiver or modification

Once there are issues or conflicts identified in the agreement, your attorney can help you to negotiate an agreement waiver or modification with your employer. This may release you entirely from the agreement or limit its terms to what is acceptable to you.

Take legal action

If a waiver or modification cannot be achieved between you and your employer, your attorney may need to involve the courts.

Depending on where you live and work, there are different ways to accomplish this that your attorney will be able to identify.

However, the courts generally do not look favorably on limiting an individual’s choice of employment, thus potentially making it difficult for your employer to enforce your non-compete agreement.

Additionally, there are laws in Virginia, Maryland, and Washington D.C. that permit employees to receive fees and compensation from employers if they prevail in their legal challenge of a non-compete agreement.

Recognizing all that’s involved in challenging your agreement, it’s critical to have an attorney on your side who knows applicable state laws and past court rulings and can evaluate the agreement.

Do You Still have Questions about Non-Compete Agreements?

Non-compete agreements can often be confusing or difficult to understand. Additionally, there are frequent changes to each state’s laws that affect them.

So if you need help understanding, modifying, or challenging a non-compete agreement in Maryland, Washington D.C., and Virginia, let the attorneys at Zipin, Amster & Greenberg help.

We will provide the guidance you need and legal representation you deserve with any non-compete agreement matter.

Contact Our Non-Compete Agreement Lawyers Today

The non-compete lawyers at Zipin, Amster & Greenberg have helped thousands of employees in the Virginia, Maryland, and Washington D.C. area get the best possible outcome.

Let us provide the experienced, up-to-date legal counsel you need to successfully handle anything related to your non-compete agreement.

Fill out our contact form today or call us at 301-587-9373.

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