April 2015
By: James B. Sherman,
Esq.
In 2014 Minnesota’s legislature entertained a bill that
would have severely limited the use of employment agreements restricting
competition; thankfully, it failed to become law. By contrast in 2015 Wisconsin
– a state with existing laws that disfavor noncompetition agreements – has
pending legislation that, if enacted, would re-write its laws to actually favor
such employment agreements. Under the
current Wisconsin law, to be enforceable in court agreements that restrict
employees from competing, soliciting, etc. during and after employment, must be
reasonably limited as to time and geographic scope and be reasonably necessary
for the protection of the employer. If a
non-compete agreement is found by a court to be unreasonable as to time or
geographic scope, Wisconsin’s current statute provides that the entire
agreement must be declared null and void. Supporters of the proposed bill say
that protecting employers from employee poaching and other unfair competition,
can attract technology and other high-tech manufacturing business to that
state.
Some of the key provisions of the new legislation, which
stands a very good chance of being enacted into law this spring, given the
political climate in Wisconsin, can be summarized as follows:
Reasonable
Post-Employment Restrictions – Under the proposed legislation, the
restriction would still have to be reasonable as to time, area, and line of
business, but the new law would define what is “reasonable” in many instances. For example, the proposed language states
that any restriction for less than 6 months is presumed to be
reasonable, and longer than 2 years is presumed to be unreasonable but the
presumption may be overcome by evidence of industry standards.
Defining “Consideration”
– Another significant provision of the new legislation seeks to define by
statute what constitutes valid “consideration.”
Common law in most states requires that for any contract to be
enforceable it must be supported by something of value in exchange for agreeing
to the restriction; i.e. “consideration.”
Oftentimes even well written noncompetition agreements are tossed from
court because they lacked this important element of enforceability. For example, courts in many states have held
that agreements signed after employment began (even one day later) cannot be
supported by employment alone as the necessary consideration. The new Wisconsin legislation specifically
states that valid consideration will be found in any of the following circumstances:
- If entered into at or within a reasonable
time after the beginning of the employment relationship, then the
employment or continued employment, if contingent on the execution of the
agreement, will be sufficient.
- If entered into at or near the end of the
employment relationship, then any consideration acceptable to the employee,
above and beyond any compensation already due to the employee, or used to
support any other covenants, releases, or promises made by the employee
will be sufficient.
- If entered into during the employment relationship,
sufficient consideration would be anything of value given in connection with
and in exchange for agreeing to the restriction. Examples of such things include: a bonus or
incentive payment, additional paid time off that the employee agrees is
adequate to support the restrictive covenant, access to a bonus or incentive
program that the employee would otherwise not have access to, or continuation
of employment if conditioned on execution of the agreement.
These provisions would take a great deal of uncertainty out
of how employers implement enforceable noncompetition, non-solicitation,
confidentiality and other restrictive employment agreements with their
employees.
Re-Writing/”Blue-Penciling”
Unreasonable Provisions – The new law would allow courts essentially to
eliminate or rewrite any specific provisions found to be unreasonable and
enforce the agreement as amended, rather than declaring the entire agreement
null and void under the current law. For
example, if a judge were to determine that a two year post employment
noncompetition agreement was unreasonably long under the circumstances of a
particular case, the new law would allow the judge to declare the agreement
enforceable but only for a shorter length of time deemed reasonable (e.g. 1
year, 6 months, etc.).
Summary – This
new law would only apply to restrictive covenants entered into
after
passage of the legislation and therefore, it would not apply to any agreements already
in existence. Again, there is a high
likelihood this legislation will be signed into law this year. Employers who use or might wish to use
noncompetition, non-solicitation, confidentiality and other restrictive
agreements with their employees in Wisconsin will want to closely monitor the
progression of this new legislation. In
the meantime, now is a good time for employers who are already using these
agreements, to have them audited for enforceability. If existing agreements are unreasonable and
thus unenforceable under current Wisconsin law the new legislation will not
operate retroactively to save them.
Therefore, now is a good time to review employment agreements to
determine if updates are in order to take advantage of the new law if, as
expected, it goes into effect soon.
Questions about non-competition agreements or any related matters? Please contact James B. Sherman at (952) 746-1700 or jasherman@wesselssherman.com.
