Law Commons^™

Bargaining For Loyalty In The Information Age: A Reconsideration Of The Role Of Substantive Fairness In Enforcing Employee Noncompetes, Rachel Arnow-Richman

UF Law Faculty Publications

This article explores the enforceability of employee non-compete agreements, with particular attention to their use in information-based industries as a response to increased worker mobility. Non-compete agreements have long been viewed with skepticism by courts and scholars due to historical concerns about employee bargaining power. This article argues that the current approach to assessing the fairness of these agreements is misdirected. Courts attempt to distinguish proper from improper restraints by looking to whether the non-compete protects an employer interest that is separate and distinct from the employer's desire simply to retain the employee. Such an approach is unworkable in an …