Q. We have an employee who is returning to work for us after having worked for a competitor. Normally, we require new employees to agree to a noncompete, with a 15-mile-radius restriction. In this case, we’d like to extend the area to a 30-mile zone around our facility. Can we have a different arrangement with her than the one we have with our other employees?
A. There is no requirement that all of your noncompetes must have the same restrictions. In order to be enforceable, however, the restrictions must be necessary to protect a legitimate business interest.
If you are going to have a different restriction with this employee, you should be prepared to articulate the business reasons why it is necessary to have a broader noncompete with her. If the reason is because your area of service has expanded, you might consider revising the noncompete for this and all other new hires.
With regard to your existing employees, you should get legal advice before seeking to make any revisions to their noncompetes.
In Minnesota, changes in noncompetes with existing employees may not be enforceable unless the employee receives something of value in return for the agreement. If done improperly, changing a current employee’s noncompete could void it.