The court found that this training did not rise to the level of a protectible interest of the employer. In summary Hapney ruled that not every non-compete clause was enforceable. An employer was denied enforcement of a covenant not to compete in Kephart v. Hair Returns, Inc. The former employer was serving the employers customers who came to her, but she was not directly soliciting their business.
Direct solicitation is required to raise the presumption of irreparable injury.
The mere fact that an employer will lose business by the former employee soliciting its customers does not by itself establish the irreparable injury that is required to obtain an injunction against competing. This was the holding in King v. Jessup where a physician opened an office near that of his former employer, a physician with whom he had signed a non-competition agreement. Under the 1990 amendment held that the employer can not satisfy the need to prove that there will be irreparable injury by inserting a stipulation that such injury will occur in the employment contract. In Spencer Pest Control of Florida, Inc. v. Smith the court found that an employer may not use its economic leverage to require an employee to bargain away the strong public policy against restraint of trade. In Sun Elastic Corporation v.