Can I Enforce A Non-Compete Agreement Against An Employee Who Has Moved Out Of State?

Can I Enforce A Non-Compete Agreement Against An Employee Who Has Moved Out Of State?

Enforcing Non-Compete Agreements Across State Lines in Real Estate Law

Non-compete agreements, also known as restrictive covenants, are contractual provisions designed to limit an employee’s ability to compete with their former employer for a specified period and within a certain geographic area after termination of employment. In the realm of real estate law, these agreements are commonly used by brokerages and firms to protect their trade secrets, client relationships, and other valuable assets. However, enforcing non-compete agreements across state lines can be complex and challenging. This article explores the legal considerations and challenges of enforcing non-compete agreements against employees who have moved out of state in the context of real estate law.

The Variation of Non-Compete Laws Among States:

One of the primary challenges in enforcing a non-compete agreement across state lines is the significant variation in non-compete laws among different states. Each state has its own laws and regulations regarding the enforceability of non-compete agreements. Some states, like California, have stringent laws that largely prohibit non-compete agreements in employment contracts. Other states may enforce such agreements, but their enforceability is often contingent on various factors, such as the scope of the restriction, the duration, and the protection of legitimate business interests.

In real estate, this can pose particular difficulties since real estate professionals often work across state lines, especially in metropolitan areas that straddle state borders. When an employee moves to a state with more restrictive non-compete laws, enforcing the agreement becomes complicated.

Choice of Law Provisions:

To address the issue of varying state laws, some non-compete agreements include “choice of law” provisions that specify which state’s laws govern the agreement. In essence, this provision allows the parties to agree that the non-compete agreement will be interpreted and enforced based on the laws of a specific state, regardless of where the employee is located or where the employment took place.

Including a choice of law provision can provide some certainty and predictability in enforcing the non-compete agreement, but it is not without challenges. Courts in the employee’s new state may choose not to enforce the choice of law provision if it violates the public policy of that state. This can result in a complex legal battle over which state’s laws should apply.

Forum Selection Clauses:

Another approach to addressing cross-border enforcement issues is the inclusion of a “forum selection” clause in the non-compete agreement. This clause designates a specific court or jurisdiction where any legal disputes related to the agreement will be resolved. By choosing a particular forum, employers seek to have the dispute heard in a court more likely to enforce the agreement.

However, like choice of law provisions, forum selection clauses can be subject to challenge. Courts in the employee’s new state may refuse to uphold the forum selection clause if it would be unjust or oppressive to the employee or if it violates the state’s public policy.

Full Faith and Credit Clause:

The Full Faith and Credit Clause of the U.S. Constitution requires that states generally recognize and enforce the judgments and legal decisions of other states. This principle applies to non-compete agreements, meaning that if a court in one state has already enforced the agreement, a court in another state is more likely to recognize and enforce that judgment. However, the original court must have had jurisdiction and properly applied the law in making its decision.

Reasonableness of the Agreement:

Regardless of the geographic considerations, the enforceability of a non-compete agreement ultimately hinges on its reasonableness. Even if the agreement’s language specifies a particular state’s laws or court jurisdiction, it must still meet the standards of reasonableness in terms of duration, geographical scope, and protection of legitimate business interests.

Courts will examine whether the agreement is necessary to protect the employer’s interests, whether it imposes undue hardship on the employee, and whether its restrictions go beyond what is reasonably required to safeguard the employer’s trade secrets or client relationships.

Practical Considerations:

In addition to the legal challenges, there are practical considerations when enforcing non-compete agreements across state lines. Litigating a non-compete dispute in a distant state can be expensive, time-consuming, and logistically complex. Employers must weigh the potential benefits of enforcement against the costs and uncertainties of pursuing legal action in another state.

Alternatives to Litigation:

Given the complexities and uncertainties involved in enforcing non-compete agreements across state lines, some employers may explore alternative dispute resolution methods. Mediation and arbitration can offer a more streamlined and cost-effective way to resolve disputes, especially when the parties agree to use a neutral forum or arbitrator.


Enforcing non-compete agreements against employees who have moved out of state presents numerous legal and practical challenges. The variation in non-compete laws among states, the potential invalidation of choice of law and forum selection provisions, and the necessity of meeting reasonableness standards all complicate the enforcement process.

Employers who wish to enforce non-compete agreements across state lines must seek the advice of experienced real estate attorneys with knowledge of both the state laws involved and the nuances of real estate industry practices. In some cases, pursuing alternative dispute resolution methods may offer a more practical and efficient path to resolving disputes.

Ultimately, the best approach to navigate this complex landscape is for employers to carefully draft non-compete agreements that comply with the specific laws and requirements of each state where they have employees, and to consider non-compete alternatives that are tailored to the unique realities of the real estate industry and its interstate nature.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. The enforceability of non-compete agreements may vary based on specific circumstances and jurisdictional considerations. For legal advice on a specific situation, consult with a qualified attorney in your jurisdiction.

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