The Basics | Employer’s Rights | Employee | Elements to Prove | Recoveries | Defenses | Trade Secrets | Procedures and Injunctions | Employment Issues | Settlement Options
The employer has the burden of proof to enforce a non-competition clause or agreement. Hence, the first “defense” is simply showing that the employer cannot meet its burden to prove the elements needed to enforce the agreement or prove the elements needed to obtain an injunction.
Failure of Consideration
A non-compete may be unenforceable for lack of consideration as discussed at greater length elsewhere on this site.
Termination of Employee
Some jurisdictions deny enforcement following a termination. Those courts typically look to see whether the termination was for cause. They also focus on the text of negotiated clause.
Material Breach By Employer
In some jurisdictions, courts will not enforce a restraint included in an employment agreement if the employer materially breaches that agreement in terminating the employee. In other states, courts will refrain from enforcing restraints against employees terminated without cause.