Initial offer of employment by itself not enough to make non-competition agreement enforceable

by Joseph Kelly

An offer of employment is not enough consideration to make a new employee’s non-competition or non-solicitation agreement enforceable — at least according to an Illinois appellate court in Fifield, et al v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327 (June 24, 2013)

Previously, an offer of employment was considered sufficient consideration for a new employee’s agreement not to compete or solicit. According to the appeals court, a non-competition or non-solicitation agreement for a new employee will be enforceable only if the employee has two years of continued employment or there’s some additional consideration above and beyond the initial offer of employment. The court didn’t elaborate on what “additional consideration” would make such an agreement enforceable.

To ensure that a new employee’s non-competition and non-solicitation agreements are enforceable, Illinois employers should consider offering some sort of monetary payment or employment benefits to that new employee in exchange for those agreements.

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