SimplyHR | Employment & Labor Blog 

In August 2021, Illinois Gov. J.B. Pritzker signed into law amendments to the Illinois Freedom to Work Act that will dramatically change the use of non-compete and non-solicitation agreements by Illinois employers. These amendments become effective January 1, 2022, and apply only to agreements entered into after that date.

The Illinois House and Senate have agreed on a version of the Illinois Freedom to Work Act, which is waiting for Governor Pritzker to sign into law. The Act puts restrictions on which employees can be subject to covenants not to compete and covenants not to solicit.

As two federal courts recognized in February 2015, Illinois law is unsettled as to the duration of continued employment that is sufficient consideration to support a non-compete agreement. In Bankers Life And Casualty v. Miller¹,a February 2015 federal court decision applying Illinois law, the court held that there is no bright line test for the length of continued employment sufficient to support a post-employment restrictive covenant specifically rejecting the argument that employment less than two years is inherently insufficient consideration under Illinois law. And in Cumulus Radio Corporation v. Olson and Alpha Media, the court recognized that the Illinois Supreme Court would likely embrace the same sort of fact specific approach to assessing the adequacy of consideration that it applies to determine whether the restrictions are reasonable.

Buyer beware as the asset protection afforded by non-disclosure and non-solicitation agreements signed by prospective purchasers may not survive the sale. This issue was addressed in a recent federal decision in Illinois offering some cautionary reminders for business buyers. In this case, Keywell LLC (“Keywell”) sought to sell its assets. Croniment Holdings, Inc. (“Croniment”), a bidder for Keywell’s assets, signed a non-disclosure agreement (the “NDA”) which prohibited Croniment from disclosing Keywell confidential information and prohibited Croniment from hiring any of Keywell’s employees with whom Croniment came into contact during negotiations. Keywell and Croniment entered into an asset purchase agreement by which Croniment would serve as the stalking horse bid for Keywell’s assets in bankruptcy.

Business Tip: Include a liquidated damages clause in your restrictive covenant agreements that clearly sets forth how damages will be calculated in the event your employee breaches the non-competition agreement.

As a President, CEO or General Counsel of your company, you have recognized the need to have your key executives and employees enter into non-competition or non¬-solicitation agreements. Those non-competition agreements are usually a cost effective way to stop your key executives and employees from competing against when they leave your company. However, in those instances where you have to go to court to enforce your non-competition agreement, the experience can be costly, in terms of attorneys' fees, your time and your company's resources.

Business Tip: Include extension clauses in your restrictive covenant agreements to ensure that the time of the restrictions will not begin to run until the employee has stopped violating the restrictions.

In order to make sure that an employer gets the full benefit of the restrictive time period in its non-competition, non-disclosure or non-solicitation agreements, employers in Illinois should make sure that such agreements contain "extension clauses." Extension clauses will extend the time period or modify the start date of the restrictive covenant in the event that an employer does not discover the former employee's breach until near the end of the restrictive time period or the employee continues to violate the restriction during litigation.

Recent Illinois appellate court decision puts in doubt enforceability of many existing employment restrictive covenants

Many businesses use restrictive covenants, such as non-solicitation and non-competition restrictions, in employment and other agreements to protect the competitive advantage that they derive from their investment in the development of customer relationships and confidential information. However, a recent Illinois appellate court decision raises serious doubt about the enforceability of many existing employment restrictive covenants. This case necessitates prompt action by employers that have restrictive covenants in agreements with their executives, managers, sales persons or employees in order to secure the protection and value they thought they had through these agreements.

“Non-compete agreements aren’t really enforceable, are they?” This is a question I’ve been asked many times, usually by someone who already signed an agreement they didn’t fully understand. Non-compete agreements, also commonly referred to as restrictive covenants, are a confusing area of the law. Let’s clear up a few of the common misconceptions.

All non-compete agreements are created equal. Fiction. Although commonly lumped into the single term “non-compete agreement,” restrictive covenants cover a variety of topics, such as non-disclosure agreements, customer non-solicitation agreements and employee non-solicitation agreements. It is common for a single agreement to include many, if not all, of these restrictions.