Debating Employee Non-Competes And Trade Secrets

Sharon Sandeen, Elizabeth A. Rowe

Research output: Contribution to journalArticleScientificpeer-review

Abstract

Recently, a cacophony of concerns have been raised about the propriety of noncompetition agreements (NCAs) entered into between employers and employees, fueled by media reports of agreements which attempt to restrain low-wage and low-skilled workers, such as sandwich makers and dog walkers. In the lead-up to the passage of the federal Defend Trade Secrets Act of2016 (DTSA), public policy arguments in favor of employee mobility were strongly advocated by those representing the "California view" on the enforceability of NCAs, leading to a special provision of the DTSA that limits injunctive relief with respect to employee NCAs. Through our lens as trade secret scholars, we enter the fray and present this Article to explore both the values and detriments of NCAs, each taking sides in the debate and providing relevant information about the different approaches to the enforceability of these agreements. Finally, we come together to suggest a more nuanced middle-ground to encourage courts to engage in a more robust analysis that focuses on both the legitimate business interest to be protected by the NCA and reasonableness in the scope of the agreement. To that end, we recommend consideration of six questions to help guide courts in achieving a more equitable and balanced outcome to protect the interests of employers and employees.
Original languageEnglish
Non-refereed scientific journalSanta Clara High Technology Law Journal
Pages (from-to)438-469
ISSN2334-1610
Publication statusPublished - 2017
MoE publication typeA1 Journal article - refereed

Keywords

  • 513 Law
  • Covenants not to compete
  • Trade secrets

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