Undue Hardship
Courts perform a balancing test to evaluate whether a non-compete agreement will be enforced. One very important factor is the hardship placed on the employee.
The Economy
The courts also look closely at the state of the economy and the overall difficulty finding non-competing work.
Other Considerations
An employee who is independently wealthy or has abundant job opportunities for non-competing companies will not be viewed in the way as a 30-something man who has three young children at home and a spouse who has a disability. Likewise, a person who has recently re-located and cannot afford to move may be given consideration.
All the Facts
One of the good things about a court sitting in equity is, the court is allowed to be “fair” and need not apply any rule of law with rigid application in deciding whether to enforce a non compete clause. This means that, the court will hold a hearing on exactly how much of a burden the non-compete would create for the employee.
