As stated before, I don’t like non-compete clauses because they unfairly prevent an individual from earning a livelihood. One defense which may work to defeat an employers’ attempt to enforce a non-compete clause is the illegality or unclean hands defense.

The doctrine of unclean hands states that he who comes into equity must come with clean hands and must not himself have been guilty of any inequitable or wrongful conduct with respect to the transaction or subject matter sued upon. If he is not guilty of inequitable conduct toward the defendant in that transaction, his hands are as clean as the court can require.

The illegality or unclean hands defense turns the focus of the dispute on the employers’ actions, not the employees. If your employer has directed you to engage in illegal conduct such actions may provide a defense to the enforcement of the non-compete clause. The illegal conduct might include discriminatory actions, copyright violations, fraudulent sales, fraudulent tax documentation, and participation in regulatory violations.

Dan Frith
Dan Frith

Dan Frith has over 25 years of experience representing individuals and families in cases of medical malpractice throughout Virginia. He has been named "Best Medical Malpractice Attorney" by Roanoker Magazine and is a member of the Million Dollar Advocates Forum. To speak with Dan, contact him by email at dfrith@frithlawfirm.com.