December 13, 2019 Articles

How a Court’s “Pencil Color” Impacts Restrictive Covenants

The difference between red and blue is significant enough in employment agreements to make or break a restrictive covenant case.

By Christopher Hennessy and Jeremy Glenn

As we approach the 2020 election, the media will invariably reference “red states” and “blue states.” Within the context of restrictive covenants in employment agreements, there are also “red” and “blue” states—as well as “independent” states—with the color a reference to the doctrine courts apply in that state when enforcing those agreements.

The difference between red and blue is significant in the election context, and many predictions as to the outcome of an election are tied directly to the color historically connected to that state. The difference is also significant enough in employment agreements to make or break a restrictive covenant case. As with elections, states that are not so clearly connected to red or blue make the outcome more difficult to predict. At the same time, the ever-developing body of case law showcases the continual challenges that employers face across the country.

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