In certain industries, the departure of an employee from a company can be a serious event, especially if they’re aware of internal information or other trade secrets. As a result, companies in these industries will very often try to get employees to sign non-compete agreements or covenants not to compete. However, so many of them prove to be unenforceable or inequitable that courts in South Carolina are more loath to accept them. If your employer is attempting to get you to sign a non-compete provision, it’s crucial that you understand exactly what is being asked of you. Learn more about non-compete agreements in South Carolina, below.
Specific Criteria Must Be Met
In order to have a valid non-compete agreement, there must, above all, be a balancing of interests between the employer’s right to preserve its secrets and the employee’s right to work in their chosen field. Restrictive covenants like non-competes are generally disfavored because it’s against public policy to restrain trade. It’s seen as being in the best interests of the state of South Carolina to encourage people to ply their trades. They will be “strictly construed” against the employer who propagates them.
Generally, covenants not to compete are seen as permissible if they meet certain specific criteria. The covenant must be:
- Necessary to protect the “legitimate interest” of the employer.
- Not be “unduly harsh” or oppressive in its restrictions on the employee’s ability to earn a living.
- “Reasonably limited” in its application with regard to time and place.
- Reasonable with regard to public policy considerations. In other words, that nothing in the contract would offend the public conscience.
- Supported by valuable consideration. That is, the employee must be well-rewarded in return for their promise to abide by the non-compete agreement. Depending on when the agreement is signed, this can simply be giving the employee a job, or it may be something like a raise in salary.
Must “Stand or Fall” On Its Merits
One important point to keep in mind when you’re dealing with a non-compete agreement is that South Carolina doesn’t follow what is known as the blue-pencil rule. The blue-pencil rule is a legal truism that holds that in a contract, if one provision is deemed unenforceable, the rest will stand. However, in South Carolina, if one provision in the non-compete agreement is ruled unenforceable, the entire agreement will be ruled unenforceable—it must “stand or fall on [its] own terms.”
It can be tempting to try and negotiate a non-compete agreement on your own. However, because so many aspects of an enforceable contract are subjective, it’s generally a better idea to seek the help of an experienced attorney. “Reasonable limitations” will differ from case to case, as will an employer’s “legitimate interest.” Generally, there are too many variables to be able to handle these types of negotiations on your own.
Contact A South Carolina Employment Attorney
Most of the time, employees simply want to be able to practice their trade. An employer’s interests must be protected, but not at the expense of the employee’s right to earn a livelihood. If you have questions about signing non-compete agreements in South Carolina, calling an employment lawyer from the firm of Hitchcock & Potts may be a good first step. Attorney A. Christopher Potts has been handling these types of cases for years, and our firm is ready to assist you with yours. Contact us today to schedule a consultation.