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Non-Solicitation & Confidentiality: Restrictive Covenants

Restrictive Covenant is the broad phrase applied to contracts which curtail an employee’s ability to work for competitors after leaving an employer (See: Non-Compete Agreements), not to take workers/accounts when leaving, confidentiality agreements, etc.

As detailed on my previous post concerning non-compete clauses, Missouri rarely enforces such provisions. They must be reasonable spatially, temporally, and be no more restrictive than is necessary to protect the employer’s interests. The main public policy concern is that such clauses restrain trade, commerce and the economic activities of the individual. Based on case law, non-compete agreements are difficult to enforce.

Confidentiality agreements, though, are a different story and decidedly favor the employer. An employee who leaves his/her employer will usually be under an obligation, regardless of the existence of a contract, to keep the employer’s bona fide trade secrets and confidential information private.

If you are an employer or employee involved in such a dispute, things like retraining orders, blue penciling, and declaratory judgments may all be applicable depending upon the facts of the case. Because of this complexity, do not take any steps without first obtaining legal advise.

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