Legally Enforceable?
A California non-compete is not enforceable to:
- Employees
- Remote workers
- Independent contractors
A California non-compete is enforceable to:
- Seller of goodwill of a business
- Partners involved in the dissolution of a partnership
A non-compete made with an employee is unenforceable. The statute specifically restricts, in any way, an individual’s ability to work in a specific industry.
“Every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”[2][3]
A California company cannot make the governing law in a non-compete to be in another State to get around State law. If the company is located in California, the remote worker will have the same protections as a resident.[4]
Independent contractors are ineligible to enter into a non-compete and falls under the same category as employees under the statute.[2]
A non-compete is enforceable against a seller that sells the goodwill of a business (corporation, LLC, partnership, etc.) that agrees to sell to a buyer that carries on the business therein.
The seller must “refrain from carrying on a similar business within a specified geographic area in which the business is so sold.”
Required Language: The law states specifically that it is for the “goodwill” of a business. Therefore, it is required to use the term “goodwill” in a purchase agreement or non-compete.[5]
The partners of a dissolving partnership can agree to sign a non-compete amongst themselves to prohibit one another from opening a similar business in the same area. The agreement should include a specific geographical area and duration.[6]
Penalties
Maximum Term
Blue Penciling
California courts will not amend a non-compete agreement that is too broad or if the terms are unreasonable.
“Courts reform contracts only where the parties have made a mistake, and not for the purpose of saving an illegal contract.[9]“