This is the second in our 3-part employment law series.

Employees are often asked to sign a set of “restrictive covenants” as part of their employment agreement. This is the case in many competitive industries, and particularly in technology companies. These clauses can include non-competition restrictions, non-solicitation obligations, and other restrictions which bind the employee after termination. In Globex Foreign Exchange Corporation v. Kelcher , 2011 ABCA 240, the Alberta Court of Appeal reviewed the enforeability of these clauses. This case provides guidance for drafting and imposing restrictive covenants. Here is a summary of some of the court’s most important findings:

• Restrictive covenants can fail due to the “lack of consideration”. The employee has to receive something of real benefit in exchange for agreeing to be bound to the restriction. An employer who wants to impose a restrictive covenant in the middle of the employment relationship must take special care, since continued employment alone does not provide sufficient consideration for a new restriction to be imposed during the term of employment. This is because the employer is already required to continue the employment until there are grounds for dismissal or reasonable notice of termination is given.
• Non-solicitation and non-competition covenants are not enforceable unless they are reasonable. What’s reasonable will depend upon the circumstances of the industry, the employer and the employee. For one of the ex-employees in this case, the court found that the restriction was unreasonably wide, because it prevented him from soliciting any customer for a period of 18 months. In other words, this restriction was not limited to customers with whom the ex-employee had a relationship during employment. The employer in this case had no legitimate interest in protecting this category of customers from solicitation by the ex-employee.
• An employer remains free to dismiss an employee at any time provided there is just cause, or there is reasonable notice of termination, or payment in lieu of notice. If none of these occurs, then the employee has been wrongfully dismissed, and wrongful termination renders the restrictive covenants unenforceable. In other words, an employee who is not terminated for just cause, or given reasonable notice or payment in lieu cannot be held to the non-competition or non-solicitation restrictions that appear in the employment agreement.

Lessons for business? Review your restrictive covenants with experienced counsel. Carefully consider the process of introducing new employment terms in the middle of an employment relationship. And handle terminations very carefully to avoid the problems of wrongful dismissal.

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