Can Non-Compete Agreements Be Enforced Against Independent Contractors In California?

Can Non-Compete Agreements Be Enforced Against Independent Contractors In California?

Enforcing Non-Compete Agreements Against Independent Contractors in California: An In-Depth Analysis

Non-compete agreements, also known as restrictive covenants or non-compete clauses, are contracts designed to limit an individual’s ability to engage in competing activities after the termination of their employment or business relationship. These agreements are commonly used in various industries, including real estate, to protect trade secrets, confidential information, and client relationships. However, when it comes to enforcing non-compete agreements against independent contractors in California, the legal landscape is more complex and restrictive compared to other states.

This article provides an in-depth analysis of the enforceability of non-compete agreements against independent contractors in California, the legal requirements and limitations, and the best practices for businesses operating in the real estate industry.

California’s Stance on Non-Compete Agreements:

California is known for its strong public policy against non-compete agreements. Section 16600 of the California Business and Professions Code states that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” This means that any agreement that restricts an individual’s ability to engage in a lawful business or profession is generally unenforceable in California.

Exemptions to the General Rule:

There are limited exceptions to California’s general prohibition on non-compete agreements. These exceptions include:

Sale of Business: Non-compete agreements are enforceable in the context of the sale or dissolution of a business entity. In such cases, the agreement is limited to protecting the goodwill of the business being sold.

Trade Secrets: California recognizes the protection of trade secrets and confidential information. While non-compete agreements per se are unenforceable, agreements that prohibit the disclosure or use of trade secrets or proprietary information may be enforceable to the extent necessary to protect those interests.

Independent Contractors vs. Employees:

One of the critical factors in determining the enforceability of non-compete agreements is the classification of the individual as an independent contractor or an employee. In California, the distinction between independent contractors and employees is crucial and is subject to specific legal tests.

California’s Three-Factor ABC Test:

California follows the “ABC” test to determine whether a worker is an independent contractor or an employee. The test presumes that a worker is an employee unless the hiring entity can prove all three of the following:

A. Control: The hiring entity does not have control over the worker’s performance of the work, both in contractual agreement and in actual practice.

B. Independence: The worker performs work that is outside the usual course of the hiring entity’s business.

C. Trade or Occupation: The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

Impact of Independent Contractor Classification on Non-Compete Agreements:

Because independent contractors operate independently and engage in their own business, they are not subject to the same restrictions as employees. As such, non-compete agreements are less likely to be enforced against independent contractors in California.

Factors to Consider in Enforcing Non-Compete Agreements Against Independent Contractors:

While the general rule in California leans against enforcing non-compete agreements, there may be instances where the agreements could be considered enforceable, even against independent contractors. Here are some key factors to consider:

Trade Secrets and Confidential Information: If the independent contractor has access to and deals with trade secrets, proprietary information, or sensitive business data, a carefully crafted non-compete clause that protects this information may have a higher chance of being enforceable.

Limited Scope and Duration: The non-compete agreement should be narrowly tailored to protect the legitimate interests of the hiring entity. A reasonable geographic scope and a limited duration of the restriction may enhance the agreement’s enforceability.

Garden Leave Clause: A “garden leave” provision, which requires the independent contractor to receive payment during the restricted period, may increase the likelihood of enforceability.

Consideration: Adequate consideration must be provided to the independent contractor in exchange for their agreement to the non-compete restrictions.

Legal Review: Consulting with a real estate attorney is essential in drafting a non-compete agreement that complies with California’s laws and maximizes enforceability within the bounds of the state’s legal framework.


Enforcing non-compete agreements against independent contractors in California is a challenging task due to the state’s strong public policy against such restrictions. While there are limited exceptions, independent contractors generally enjoy greater freedom to compete in their chosen profession or trade.

Real estate businesses operating in California should carefully evaluate the need for non-compete agreements and consider alternative methods of protecting trade secrets and confidential information. If a non-compete agreement is necessary, the agreement must be drafted with precision, with attention to compliance with California law and the specific circumstances of the relationship with the independent contractor.

In any case, consulting with a knowledgeable real estate attorney is vital to navigate California’s complex legal landscape and protect your business interests within the bounds of the law. By taking a proactive approach and seeking legal advice, real estate businesses can implement effective strategies to safeguard their proprietary information and maintain a competitive advantage while respecting California’s laws and regulations.

Whether you’re a property owner, investor, or business owner, Real Estate Law Corporation™ is your trusted partner on the path to legal success. Contact us today to embark on a journey of exceptional legal support. Our team of seasoned attorneys brings decades of experience to every case, demonstrating a profound understanding of real estate law, transactions, litigation, business intricacies, and estate planning. With a proven record of success, our portfolio is adorned with numerous landmark cases that stand as a testament to our dedication, expertise, and commitment to achieving favorable outcomes for our clients.