To make matters even more complicated, many state statutes also require employers to provide advance notice of the terms of a non-compete agreement to its recruits, prior to the start of employment. However, “earnings” are generally evaluated at the time of separation. In many circumstances, this means that employers of commission-based employees may struggle to accurately predict at the start of employment whether a given employee will earn at or above the specific wage which would allow the employer to enforce the terms of a non-compete. How, then, are these employers able to protect their goodwill, safeguard their trade secrets, and prevent unfair competition while still providing the employee the required advance notice?
One option for employers to consider is the use of a springing non-compete provision, which would become operative only when the employee’s earnings exceed the statutory threshold. However, it is imperative that employers pay attention to state-specific requirements for these types of agreements. For example, in Washington, if the non-compete agreement becomes enforceable only at a later date due to the changes in the employee’s compensation, the employer must also specifically disclose that the agreement may be enforceable against the employee in the future.
Additionally, it is crucial for employers to have supplemental safeguards in place. Legislation relating to restrictive covenants with low-wage workers primarily—but not exclusively—prohibits non-compete agreements. Even in jurisdictions like Illinois, which also restricts the use of non-solicitation covenants for certain income levels (under $45,000 per year), employers should leverage available options. Lesser restrictions, such as non-disclosure agreements, still offer a measure of protection for employers in this context. Also, employers should consider practical measures, including stringent digital security and in-depth and continuous employee training.
Given the increasing focus on low-wage workers’ ability to freely compete, employers should be prepared for additional legislation pertaining to non-compete agreements for low-wage workers. Therefore, practitioners should be prepared with effective and compliant contractual restrictions, as well as practical solutions to ensure protection of their clients’ trade secrets and goodwill.