Can I Include Non-Compete Clauses In Employment Contracts?

Can I Include Non-Compete Clauses In Employment Contracts?

Non-Compete Clauses in Employment Contracts: Understanding the Pros and Cons

Non-compete clauses, also known as restrictive covenants or covenants not to compete, are contractual provisions commonly used in employment contracts to restrict employees from engaging in certain competitive activities during and after their employment. These clauses aim to protect employers’ interests, trade secrets, and client relationships. However, the use of non-compete clauses in employment contracts has raised significant legal and ethical debates. In this article, we will explore the pros and cons of including non-compete clauses in employment contracts within the context of real estate law.

Understanding Non-Compete Clauses:

Non-compete clauses are contractual agreements that prevent employees from competing with their current employer during the term of their employment and for a specified period after termination. The prohibited activities may include working for a competitor, starting a competing business, or soliciting the employer’s clients.

Pros of Including Non-Compete Clauses:

1. Protecting Trade Secrets and Confidential Information:

One of the primary benefits of non-compete clauses is their ability to protect sensitive business information, trade secrets, and proprietary knowledge. Real estate companies may have valuable client lists, marketing strategies, and business processes that they wish to keep confidential.

2. Safeguarding Client Relationships:

For real estate professionals, maintaining strong client relationships is crucial to their success. Non-compete clauses can help prevent employees from poaching clients and taking them to a competitor.

3. Encouraging Investment in Training and Development:

Employers may invest significant time and resources in training their employees. Non-compete clauses can ensure that employees do not leave shortly after receiving training, thereby encouraging employers to invest in developing their workforce.

4. Preserving Business Goodwill:

Non-compete clauses can preserve the business goodwill of real estate companies by preventing former employees from using their knowledge and connections to divert business to a competitor.

5. Competitive Advantage:

Including non-compete clauses can provide real estate companies with a competitive advantage by limiting the potential pool of skilled workers available to their competitors.

Cons of Including Non-Compete Clauses:

1. Inhibiting Employee Mobility and Innovation:

Non-compete clauses can hinder employee mobility and entrepreneurship. Restricting employees from pursuing their profession or occupation after leaving a company may stifle innovation and limit the free flow of talent in the job market.

2. Potential for Unenforceability:

In many jurisdictions, including some U.S. states like California, non-compete clauses are subject to strict scrutiny and may be deemed unenforceable unless they meet specific legal requirements. If a non-compete clause is found unenforceable, it can render the entire employment contract void.

3. Employee Dissatisfaction and Turnover:

Including non-compete clauses in employment contracts may lead to employee dissatisfaction and increased turnover. Employees may feel constrained and undervalued, prompting them to seek opportunities elsewhere.

4. Impeding Economic Growth and Competition:

Critics argue that non-compete clauses can have a negative impact on economic growth and competition by limiting job mobility and restricting entrepreneurship.

5. Challenges in Drafting Enforceable Clauses:

Creating enforceable non-compete clauses can be challenging. The clauses must be narrowly tailored in terms of duration, geographical scope, and prohibited activities to be considered reasonable by the courts.

Legal Considerations:

The enforceability of non-compete clauses varies significantly from one jurisdiction to another. Some states strictly prohibit or severely limit their use, while others may uphold them if certain conditions are met. When considering including non-compete clauses in employment contracts, employers should consider the following legal considerations:

1. Jurisdictional Laws:

It is essential to be aware of the specific laws and regulations governing non-compete clauses in the jurisdiction where the business operates. Employers should seek advice from experienced employment law attorneys to understand the legal landscape.

2. Tailored and Reasonable Terms:

Non-compete clauses must be tailored to the specific needs of the business and reasonable in scope. Courts are more likely to uphold clauses that are narrowly drafted and reasonably limited in duration and geographic area.

3. Trade Secrets and Confidential Information:

If the primary goal of including non-compete clauses is to protect trade secrets and confidential information, employers should ensure that these elements are adequately defined and protected in the employment contract.

4. Consideration and Bargaining Power:

For a non-compete clause to be enforceable, employees must receive adequate consideration in exchange for their agreement to be bound by the restrictions. Employees with limited bargaining power may be more likely to challenge the enforceability of such clauses.

5. Alternatives to Non-Compete Clauses:

Employers may consider using alternative methods to protect their interests, such as confidentiality agreements, non-solicitation agreements, or non-disclosure agreements, which may be more enforceable and less restrictive on employee mobility.


The inclusion of non-compete clauses in employment contracts is a complex decision that requires careful consideration of both the business’s interests and the legal landscape. While these clauses can provide valuable protection for trade secrets, client relationships, and business goodwill, they also come with potential drawbacks related to employee mobility and innovation. Employers should seek legal advice from experienced employment law attorneys to ensure that non-compete clauses are appropriately drafted, tailored to the specific needs of the business, and compliant with applicable laws.

Real estate companies, in particular, should be aware of the nuances of non-compete agreements in their specific jurisdiction and consider alternative methods to protect their proprietary information and client relationships without unduly hindering employee mobility and entrepreneurship.

Disclaimer: The information provided in this article is for general informational purposes only and should not be construed as legal advice. The enforceability of non-compete clauses varies depending on the applicable laws and the specific circumstances of each case. Employers and employees should consult with qualified legal counsel to understand the legal implications of including non-compete clauses in employment contracts.

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