According to Georgia law, non-compete agreements are generally enforceable against former employees, as long as they are reasonable in time, scope and geographic area. However, they can only be enforced against people who met certain criteria during their employment. This is to prevent undue restriction on your former employee’s legitimate business activities.
In order to be subject to a non-compete agreement in Georgia, the person must have met one of these criteria during the course their work for you:
- They regularly and customarily solicited customers or prospective customers for you
- They regularly and customarily engaged in making sales or obtaining orders for products or services performed by others
- They performed the duties of a key employee or professional, or
- They engaged in all of these activities:
- Had a primary duty of managing the enterprise or of a department or subdivision
- Regularly and customarily directed the work of two or more employees, and
- Had the authority to hire and fire or had particular weight given to their recommendations for hiring, firing, promotion or other change of status for employees
Even if your former employee did not meet these criteria, however, you could still enforce a non-solicitation agreement restricting them from soliciting your current or actively-sought prospective customers. You can also still enforce confidentiality and nondisclosure agreements meant to protect proprietary information such as trade secrets.
What happens if a non-compete agreement is found unreasonable?
If your non-compete agreement is on the line, your business could be on the line. Assuming the former employee meets the criteria above, the agreement still has to be considered reasonable in time, scope and geographical reach.
The worst-case scenario in an enforcement action is for your entire contract to be considered null and void. This could potentially happen if the non-compete is considered unfair or commercially unreasonable. However, it is more likely in most cases that a court would declare only part of the agreement void and unenforceable.
For example, a court would be unlikely to allow a non-compete agreement that restricted a former employee from working in any competing industry in the entire country forever. If your agreement restricts someone from too many jobs, in too great a geographic area or for too long a time, it could be considered an unenforceable restraint on trade.
Far more likely, however, is an agreement that restricts the employee too greatly in only one of these areas. During the course of an enforcement action, your attorney will attempt to ensure that as much of your non-compete agreement as possible is found valid and enforceable.
