Georgia Lawyer Helps Evaluate Noncompete Agreements for Upcoming Employee Transitions and for Company Recruiters

ATTORNEY with 39 years of experience CLARIFIES RIGHTS AND RESTRICTIONS WHEN A JOB transition occurs, and depending on the engagement, minimizes the effect of the restrictions, or enforces them to the maximum

The number of employees who have signed confidentiality/non-disclosure agreements, non-solicitation agreements, non-compete agreements and other post employment restriction agreements is much greater than commonly believed. Often these agreements were written by out-of state lawyers, taken off of some legal form website, or cobbled together by a law firm without the particular knowledge needed to make such an agreement enforceable under GEORGIA LAW. The content and enforceability of these agreements are matters of Georgia public policy. But, there is twist. Two different bodies of Georgia public policy apply to these agreements. One, to contracts entered into before May 11, 2011; another for contracts made after May 11, 2011.

Prior to the enactment of the “Restrictive Covenants in Contracts” statute that required an amendment to the Georgia Constitution, Georgia was the state whose law was most hostile, at least in some instances, to restrictive covenants, besides California. That was the public policy of Georgia prior to May 11, 2011. Dalziel’s experience prior to 2012 was primarily planning transitions of departing employees who had restrictive covenants, and particularly finding defects in the covenants as drafted which rendered them unenforceable. Dalziel READ AND INTERPRETED the contracts. Despite the fact that the Georgia courts said that the enforceability of such agreements was determined through the use of a three part test, as to time, territory and scope of activity, they did not put all these factors together in a soup and then determine enforceabilty. Rather, there were rules that said certain time provisions were per se unenforceable; certain territory provisions were per se unenforceable; and certain scope of activity provisions were per se unenforceable. Dalziel’s job was to mount a deer stand and hit the exact point of per se unenforceabilty to free his clients from the contracts. This body of Georgia law relating to the enforcement of restrictive covenant agreements still applies to contracts entered into prior to May 11, 2011. Dalziel has virtually immediate recall of all of the hot buttons of unenforceability that he can put to your benefit—employee or employer. Thus, he is uniquely qualified to serve as counsel at a TRO or PI hearing.

Some Georgia courts, particularly federal courts, did not apply the Georgia law hostile to covenants, largely on the basis of freedom of (illegal) contract, and in some cases Dalziel’s clients were enjoined. In those cases, Dalziel made every effort to use his good relationships with enforcement counsel to settle the case quickly, removing the threat that clients would risk the threat of being held in contempt of the injunction. In almost every case, once the case was settled, the client’s customers came en masse with the transitioning employee.

On the enforcement side, Dalziel under the old law made it about what the Defendant took from the prior employer, and not as much about the enforceability of the contract. Effective use of subpoenas to produce documents at TRO hearings has given Dalziel an enviable record of obtaining injunctions in enforcement cases, even under the old law.

At this point, now we are seeing more cases relating to the enforceability of post - May 11, 2011 contracts. The new law creates safe harbors of enforceability for such contracts if only the drafter will follow them. But, a surprising number of the contracts do not draft into the safe harbor, and Dalziel is slowly creating a whole new body of law of per se unenforceability under the new statute. The courts under the new law have the discretion to modify the contract to make it enforceable, but many courts have been reluctant to exercise this discretion, and the ones who do don’t claim the ability to rewrite the contract. Dalziel remains a top choice in defending a non-compete case, whether under the old law, or the new.

To employers, Dalziel can offer two important services: (1) Drafting a restrictive covenant contract, driving the boat directly into the safe harbor to maximize the chances of enforceability of the contract; and (2) Enforcing any existing post May 11, 2011 covenant in litigation, or using accompanying trade secret, conversion and breach of fiduciary duty to claims to minimize the loss caused by the breach, and to recover whatever damages are caused. With his long, hard earned experience in attacking the enforceability of covenants, Dalziel brings a unique ability to develop creative theories to enforce them.

AVAILABLE COUNSEL CONCERNING COVENANTS REGARDLESS OF WHICH STATE’S LAW APPLIES

DETAILED ADVICE TO HELP PROTECT the recruit’s ABILITY TO EARN A LIVING

It can be intimidating to confront a current or former employer regarding your onerous non-compete covenant. Whether you’re a new employee, a veteran employee about to start a new job, or a hiring employer, I can be the face for your team in minimizing non-compete issues.