Just thinking about that former employee who solicited your customers just days after he quit, is infuriating. Maybe that former employee opened his own shop a few blocks away, providing the same exact services as your own. All you can think about are the months of training and mentoring you gave to that former employee who is now a competitor. Once he finally got to that point where he was useful, he quits to start his own shop.
In most cases, the employer doesn’t take this lying down and neither will you. So, you look to that employment contract the former employee signed before his first day. You read that section prohibiting him from competing with your company for two years after he leaves and that other section where he agrees not to solicit your customers. Based upon a straight forward reading of this employment agreement, It appears that this disloyal former employee is in violation of your agreement so a court of law will righteously enter an order compelling this traitor to close his business and stop soliciting your customers.
Unfortunately for many business owners who invest time and money into their employees, nothing is ever that easy. A new ruling from the Illinois Appellate Court of the First District held that a nonsolicitation and noncompete agreement is not be enforceable until two years of continuous employment. In the case of Fifield v. Premier Dealer Services, Inc., the First District held that a noncompete and nonsolicitation agreement was not enforceable against an at-will employee that worked less than two months. The Court further stated that such an agreement requires that the employee work at least two continuous years for the employer as consideration before the agreement is enforceable. The Appellate Court has now created an additional requirement to meet before any employer in its jurisdiction decides to sue that former employee under a noncompete agreement.
There are several factors to consider before filing a lawsuit against a former employee, and this new appellate court case adds another one. As always, each case is unique and there are facts to consider that are not addressed in this Fiflied opinion. For instance, are other forms of consideration besides continuous employment sufficient? What about a signing bonus? It’s also important to note that this case is an Appellate Court decision from the First District, so other district courts are not required to follow its ruling.
However, any lawyer worth his salt seeking to invalidate a noncomepte or nonsoliciation agreement, will look to the Fifield court’s analysis for assistance regardless of which district has jurisdiction over its case.
