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• Articulating the types of confidential material to which the employee has access—for example, customer lists, sales strategies, growth plans and pricing strategies.
Specific types of clauses in non-compete agreements require specific kinds of drafting attention. Tailor a restriction against working for a competitor to the employer’s actual type of business.
For example, an employer that makes special coatings for the paper industry should limit its restriction to that specific field, rather than include a general prohibition against working for a competitor. If it is easy enough to expressly denote your company’s major competitors, that too will go a long way toward convincing a court that the restrictions are narrow and reasonable and that they fit.
A Few Stitches In Place and Time
Think of geographic and time restrictions as the seams to non-compete agreements. Some states will not enforce any non-compete that does not contain geographic restrictions. A valid geographic restriction depends on the scope of the company’s business as well as the individual employee’s duties.
A national or even worldwide restriction may be valid if the company is actively engaged in business on such a wide front, but only if the employee is actually engaged in business on the same scale. Otherwise, the restriction may be unreasonable. For instance, a company may sell its product on a national basis but assign its sales representatives to particular regions. A restriction beyond the employee’s regional territory will be difficult to enforce.
As for time restrictions, courts are much more likely to enforce restrictions of one year or less. (Ohio is one exception, where restrictions of one and two years generally are considered reasonable.)
The appropriateness of a time restraint depends on factors such as how quickly an employer can employ and train a replacement, the length of time needed to adequately protect the employer’s interests, and the ex-employee’s ability to find suitable work or earn a living.
How the non-compete agreement is presented also matters—with emphasis on the word agreement. If an employer can show an employee knew what she was getting into when she entered into a non-compete agreement, it will be easier to show the fairness of the restrictions.
Consent should be obtained in exchange for employment, wages, benefits and other consideration. Allocating specific compensation in dollars, stock options or other benefits in exchange for the agreements can be particularly effective.
Reviewing, updating and re-executing non-compete agreements as part of the annual performance evaluation process not only fulfills that requirement, but also reinforces the employee’s consent to the limitations. Care must be taken, though, because some states require additional consideration for non-compete agreements that are executed after the beginning of employment. In those cases, re-execution should be restricted to instances where the performance evaluation leads to an increase in pay or benefits.
Avoid Snags in Enforcement
After properly designing and fitting non-competes and securing workers’ buy-in, employers should face fewer snags if they need to enforce the agreements.
If an employee breaches a non-compete, the usual first step is for the company, often through counsel, to remind the former employee of his or her duties in a “cease and desist” letter. Putting the new employer on notice also is effective, as the new employer often is unaware of the new employee’s restrictions. If these steps fail, they will support an argument that court intervention is the company’s only recourse to protect its rights.
If the employer’s informal attempts to secure compliance fail, the employer may pursue a number of different remedies in court, including injunctions and monetary damages such as lost profits. But monetary damage awards may be cold comfort to an employer that loses an employee, key clients, trade secrets and its competitive position to a rival. The more effective procedure for enforcing a non-compete agreement is through an injunction—a court order barring the employee from violating the agreement.
Injunctions work better than money damages because they immediately stop the employee from working for a competitor, disclosing trade secrets, or interfering with customers and clients. Many judges, however, are predisposed against granting injunctions to enforce non-competes, even when the laws of their state provide that non-competes are enforceable. Whether a judge will grant injunctive relief to enforce a non-compete ultimately may depend on his or her own sensibilities and notions of fairness.
Given that employers may face an uphill battle in receiving an injunction, they should prepare compelling evidence showing that, without the court’s protection, their legitimate business interests are in jeopardy. In many states the most persuasive business interests are the employer’s trade secrets and customer information.
Along these lines, the employer also must show that, absent an injunction, it is likely to suffer irreparable harm as a result of the former employee’s breach. The former employee’s possession of trade secrets, for example, might be enough to convince a court that irreparable harm will result from the breach of a non-compete, but often more compelling evidence is necessary, as discussed in the next section.
Common Patterns Of Bad Conduct
Evidence of the former employee’s bad conduct is perhaps the most convincing in pursuit of an injunction. “Bad conduct” can take many forms, including copying, downloading or otherwise taking from the employer any information that is proprietary or trade secret in nature. Such information includes customer lists and contacts, customer preferences, pricing information, profit margins, product formulations, business strategies and research, and any other information that can be construed as having economic value to the employer.
Other bad-conduct evidence that a judge might find persuasive includes the employee’s plotting—on the employer’s time or using the employer’s resources—toward forming a competitive business or joining or assisting a competitor.
Virtually anything done surreptitiously on the employer’s time while using the employer’s resources might suggest a threat of irreparable harm. Such conduct will indicate to the judge the former employee’s intentions were not only to engage in competitive activity, but also to do so in a manner that harms the employer or benefits the former employee at the employer’s expense.
As a preventive measure, employers should inform employees that their e-mails, voice mails and work documents are company property and can be monitored at the company’s discretion. Develop pro-cesses for capturing information that may demonstrate an employee’s disloyal use of company resources. Implementing such processes may seem cumbersome, but they go a long way in helping a business prove a case if it gets to court.
Because bad-conduct evidence can be so powerful in court, employers should do everything they can to gather and preserve it any time a key employee who is subject to a non-compete leaves the company. One of the most important things an employer can do to garner bad-conduct evidence is to recover the former employee’s computer and isolate it so that another employee does not use it, until the company is satisfied that it can trust the departing employee.
As soon as possible, take any other necessary steps to secure e-mail correspondence that the employee sent and received during the months before departing. This generally can be done by the company’s in-house IT staff.
Departing employees often try to cover their tracks by cleaning their hard drive or otherwise deleting information from the computer system. Frequently, however, computer forensic specialists can recover deleted files and e-mails, even in situations where the former employee has gone to great lengths to erase them. This process is expensive, but it may be warranted if the stakes are high enough.
A carefully drafted non-compete agreement should create a level playing field by preventing a former employee from using a company’s good will, confidential information and customer contacts to create an unfair advantage in the marketplace. Because the threat is real and the potential damage great, it is worth making the effort to create the protection provided by well-designed non-compete agreements for key employees.
In the end, however, an employer seeking to enforce a non-compete agreement must appeal to the individual judge’s sense of fairness. If an employer can highlight covert conduct by the former employee that is detrimental to its business interests, the non-compete agreement will appear in the best light, helping it to pass a judge’s inspection.
Stephen L. Richey is a partner in Thompson Hine LLPs Labor and Employment practice group in Cincinnati.
Web Extras
Other Restrictive Covenants
Non-compete agreements aren't the only form of restrictive covenant available to employers.
Non-disclosure agreements are another option. These agreements are intended to protect the disclosure and misuse of a company's confidential information and trade secrets. Trade secrets are proprietary information that has value because the information is generally unknown in the industry and to competitors. The description of the specific information to be protected (e.g., sales margins for the salesperson, computer-aided design drawings for the engineer and computer codes for the programmer) is a crucial detail.
As for non-solicitation agreements, it is helpful to delineate the actual customers of the employee. Some companies restrict employees from soliciting lists of clients, customers or business leads, preventing the direct theft of a long-term client by a former employee. Courts generally enforce restrictions on contacting customers only if the employee had personal, ongoing or recent contact with the customer. To remain accurate, such a list must be kept current.
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Will my face recover? My lower face is saggy and sore
I allowed a Beverly Hills oculoplastic surgeon to inject 3 mls Resty in my temples and 3 mls in my chin/jawline. The temples are OK, but I had the chin/jawline filler dissolved (took several attempts ). My lower face is saggy and sore. How long before I return to normal? I paid $4200 to have this doc make my face look worse, but I would have paid double that to have avoided this mess in the first place.
Doctor Answers 3
Most likely it would be fine.
So sorry that you have had such an experience. Usually we are able to please the patients with fillers. there are very few patient that don't like the result of fillers. Having said that, the injector has to know what to do with the fillers. time can help you recover from this ordeal. the edema and soreness as well as the bruises should resolve in two to three weeks.
Sagging skin after filler is dissolved
Thank you for your question. I am sorry to hear that you're going through this - the good news is, things should go back to normal. However, my guess is that your were injected in your lower jaw because you likely have some sagging skin to start. While injecting a hyaluronidase (the medication used to dissolve the filler) will not cause damage to your native tissue, there can be inflammation in the area for a couple of weeks. If you're still looking for other non-invasive therapies to treat your face, you may want to consider Ulthera. Ulthera is an ultrasound-based machine that provides a lift to the tissues treated - including the jawline, and all throughout the face. The procedure causes collagen deposition and helps to plump things up, while also providing some skin tightening. It will not give you the results of a face lift, but will help to subtly improve things. Best of luck!
Anthony J. Taglienti, MD
Norristown Plastic Surgeon
Hope for Saggy and Sore--Try Venus Legacy
I'm not sure of the timeline, but your face will return to normal. You could try Venus Legacy treatments to help firm the skin. Hyaluronidase can be used to reverse the filler as ewll. See an expert. Best, Dr. Emer
Jason Emer, MD
Los Angeles Dermatologic Surgeon
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Introducing Mandala Studio
Mandala Studio
A sacred space for yoga education <3
The dream for a yoga space of my own began many years ago. I'd been teaching yoga in the studio environment and had just started leading retreats. I found the retreats gave me the opportunity to get to know my students a bit better than the one hour drop-in classes I'd been teaching. I started to crave the intimacy that came with the retreats; I was better able to build a trusting relationship with the people I was guiding through vinyasas. It was easier to personalize the practices for them and I felt I could give them more as they no longer became 'Jenny- the middle-aged woman who's always in the back row and has tendonitis' and instead became 'Jenny- the empath who works with disadvantaged youth, has two Boston Terriers, loves Syrah, has a husband who's a lawyer and travels a lot for work and struggles with depression but feels guilty for feeling depressed because he thinks he should be more grateful for the wealth his job brings him.' Make sense?
Utimately, I craved a greater sense of community and relationship, and through the immersion in the retreats, I was able to find that and saw how when I took the time to get to know my students better, I found teaching more rewarding and I found my students' practice BLOSSOM.
For too many years I was focussed on BIGGER classes, gaining more clientele, becoming more popular, when deep down inside my spirit longed for the connections that sprang up from intimate environments and compassionate relationships. I began teaching private classes and fostering these relationships but when I started struggling with finding space to rent in Kelowna for my private yoga classes, I convinced the hubby that we needed to find a bigger home so I could teach in a space that I could control 100%. I understand that the idea of bringing 'strangers' into your home can freak some people out! But for me, it is the ultimate way to take care of my students; epic hospitality combined with a divinely curated space. Yes please!
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This spring I will be offering a Transformational Intensive (two morning classes a week), a weekly evening Vinyasa practice, and a weekly sleepy time Aromatherapy Yin practice. To register, please visit my 'Classes' page for info and pay via PayPal, or send me an email ( transfer. I will contact you to confirm your registration once I receive your payment. I'M SO EXCITED and can't wait to welcome you with open arms!
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The best reason to meditate ever...
I have been exploring the world of meditation now for ten years but only just recently did a dear friend of mine send me this explanation of why it is so essential. It actually gave me goosebumps- never has something resonated so deeply with me! After reading this, my meditation practice has taken on an entirely new vigilance. I genuinely hope that it does for you what it did for me <3
~Meditation, Why Bother?~
"Meditation is not easy. It takes time and it takes energy. It also takes grit, determination and discipline. It requires a host of personal qualities which we normally regard as unpleasant and which we like to avoid whenever possible.
Why bother? Simple. Because you are human. And just because of the simple fact that you are human, you find yourself heir to an inherent unsatisfactoriness in life which simply will not go away.
You can suppress it from your awareness for a time. You can distract yourself for hours on end, but it always comes back--usually when you least expect it.
All of a sudden, seemingly out of the blue, you sit up, take stock, and realize your actual situation in life. There you are, and you suddenly realize that you are spending your whole life just barely getting by.
You keep up a good front. You manage to make ends meed somehow and look OK from the outside. But those periods of desperation, those times when you feel everything caving in on you, you keep those to yourself. You are a mess. And you know it. But you hide it beautifully.
Meanwhile, way down under all that you just know there has got be some other way to live, some better way to look at the world, some way to touch life more fully. You click into it by chance now and then.
You get a good job. You fall in love. You win the game. and for a while, things are different. Life takes on a richness and clarity that makes all the bad times and humdrum fade away.
The whole texture of your experience changes and you say to yourself, "OK, now I've made it; now I will be happy". But then that fades, too, like smoke in the wind. You are left with just a memory. That and a vague awareness that something is wrong.
So what is wrong with you? Are you a freak? No. You are just human. And you suffer from the same malady that infects every human being. It is a monster inside all of us, and it has many arms: Chronic tension, lack of genuine compassion for others, including the people closest to you, feelings being blocked up, and emotional deadness. Many, many arms.
None of us is entirely free from it. We may deny it. We try to suppress it. We build a whole culture around hiding from it, pretending it is not there, and distracting ourselves from it with goals and projects and status.
But it never goes away. It is a constant undercurrent in every thought and every perception; a little wordless voice at the back of the head saying, "Not good enough yet. Got to have more. Got to make it better. Got to be better." It is a monster, a monster that manifests everywhere in subtle forms.
Life seems to be a perpetual struggle, some enormous effort against staggering odds. And what is our solution to all this dissatisfaction? We get stuck in the ' If only' syndrome. If only I had more money, then I would be happy.
If only I can find somebody who really loves me, if only I can lose 20 pounds, if only I had a color TV, Jacuzzi, and curly hair, and on and on forever.
So where does all this junk come from and more important, what can we do about it? It comes from the conditions of our own minds. It is deep, subtle and pervasive set of mental habits, a Gordian knot which we have built up bit by bit and we can unravel just the same way, one piece at a time.
The essence of our experience is change. Change is incessant. Moment by moment life flows by and it is never the same. A thought springs up in you head and half a second later, it is gone. In comes another one, and that is gone too.
There is not a thing wrong with this. It is the nature of the universe. But human culture has taught you some odd responses to this endless flowing. We categorize experiences. We try to stick each perception, every mental change in this endless flow into one of three mental pigeon holes.
It is good, or it is bad, or it is neutral. Then, according to which box we stick it in, we perceive with a set of fixed habitual mental responses. If a particular perception has been labeled 'good', then we try to freeze time right there.
We grab onto that particular thought, we fondle it, we hold it, we try to keep it from escaping. When that does not work, we go all out in an effort to repeat the experience which caused that thought. Let us call this mental habit 'grasping'.
Over on the other side of the mind lies the box labeled 'bad'. When we perceive something 'bad', we try to push it away. We try to deny it, reject it, get rid of it any way we can. We fight against our own experience. We run from pieces of ourselves. Let us call this mental habit 'rejecting'.
Between these two reactions lies the neutral box. Here we place the experiences which are neither good nor bad. They are tepid, neutral, uninteresting and boring. We pack experience away in the neutral box so that we can ignore it and thus return your attention to where the action is, namely our endless round of desire and aversion.
This category of experience gets robbed of its fair share of our attention. Let us call this mental habit 'ignoring'. The direct result of all this lunacy is a perpetual treadmill race to nowhere, endlessly pounding after pleasure, endlessly fleeing from pain, endlessly ignoring 90 percent of our experience. Than wondering why life tastes so flat. In the final analysis, it's a system that does not work.

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