Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters, and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, legal marketing, and development.

Still, here at Miletti Law®, we feel obligated to enlighten, educate, and create awareness about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, in order to achieve this goal, we have committed ourselves to creating authoritative, trustworthy, & distinctive content, which looks to not only educate, but also deliver in a manner that only Miletti Law® can. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With the ball in your court, yours is an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and benefit from the knowledge bombs we drop here!

As the authoritative force in Employment Law, we are committed to ensuring that we live up to our word by keeping you in the loop, informed, and enlightened about various legal and non-legal issues related to labor law. Through our ongoing series, we have provided you with crucial information on how to enforce restrictive covenants and protect trade secrets. To ensure that we keep you in the loop, this blog is Part VIII and the last in our abridged series on “Fundamental Aspects of Restrictive Covenants.” In Part VII, we provided you with a hands-on guide on “Understanding Reasonable Time Restrictions for Covenants.” As promised, we aim to enlighten you on “How to Set Enforceable Restraints on a Person’s Activity” in this blog.

How to Set Enforceable Restraints on a Person’s Activity

When drafting an enforceable restrictive covenant, an employer should make sure to define the scope of restrained activity. From a legal perspective, most states enforce restrictive covenants in which employees are restricted from providing sales services similar to those provided by a competitor. In most cases, covenants that consist of narrowly tailored clauses on scopes of activity will be enforced by courts. This implies that an employer could increase the chances that their covenants are enforced by including clauses and statements through which employees’ prohibited activities are specifically identified. For instance, a court will likely enforce a restriction where an employee has been restricted from offering similar development and research functions for a new employer, where the scope and extent of the banned research have been specifically delineated.

Technically, although it might seem the same to restrict an employee from undertaking a given role or assuming a given position or job title with a competitor, restrictive covenants might be rendered meaningless because of the variation in the meaning and scope of job titles in different companies. Nonetheless, restrictions prohibiting an employee from associating with a competitor in any capacity have been upheld by courts in limited circumstances. However, such restrictions have been found overly unreasonable and broad by most courts. Thus, as a best practice, employers should try to tailor restrictions to titles or positions that are substantially similar or even the same to the previous one an employee held before engaging with the new employer.

At times, if an employee’s roles are utterly the same as those the employee carried out for a former employer, particularly where it is highly probable and inevitable to disclose or use the former employer’s confidential information, courts may uphold a ruling in favor of irreparable harm based on the fact that the employee works for a competitor. This implies that the best practice mentioned earlier entails a technique that aligns with the doctrine of inevitable disclosure, popular in litigations related to misappropriation and/or loss of confidential information and trade secrets. On the contrary, an employer may list specific types of positions and activities as a way of defining the scope of activity within which an employee is restricted from engaging with a new employer. Such a list provides a court with the opportunity to critically evaluate how the employer’s legitimate interest to protect confidential information and/or trade secrets has been narrowly tailored to the restriction(s) in question, especially in blue-pencil states.

Hoping that we have laid a solid foundation for our lengthy discussions on restrictive covenants that bind and restrict employees from misappropriating confidential information and/or trade secrets in our continuing and upcoming series, we have concluded this short series on “Fundamental Aspects of Restrictive Covenants.” Ensure that you stay in the loop and informed by reading our upcoming blogs on this interesting and important topic.

As always, stay tuned for more educative, enlightening, informative, and interesting content. In the interim, reach out to us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.