VIRGINIA SHOULD NOT FOLLOW GEORGIA: NO STATE SHOULD

Georgia is getting ready to make a big mistake! In the past, our southern sister state treated employees fairly in dealing with non-compete agreements. Like Virginia, Georgia courts refused to “blue-pencil” invalid and illegal non-compete agreements. In other words, if the non-compete agreement was too broad and onerous to enforce, Georgia courts would not re-write the agreement to make it fair and enforceable. It followed the principal that if the employer, with all of its leverage and advantages, could not draw up a valid non-compete agreement…the court was not going to help them.

This may all change later this year. Why? Because the Georgia legislature has approved a constitutional amendment that will change non-compete law should voters ratify it in November.

A number of changes will take place if the amendment passes including:

1. Georgia courts will be given the authority to blue-pencil contracts to make them enforceable.

2. Non-compete and non-solicitation contracts will be allowed to include a prohibition on acceptance of business from clients…preventing “passive” solicitation when a client/customer follows the departing employee without any efforts by the employee to “take” the client/customer.

3. The law also sets presumptively reasonable non-compete durations: for employment, 2 years; for franchisee or distributors, 3 years; and for a seller of a business, the longer of 5 years or the time during which payments are made for the sale.

My Take: This is bad law and gives employers yet another layer of protection they do not need. If the company’s smart and well-paid lawyers fail to write a valid and enforceable noncompete contract then the court should not lend a hand.

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.