What makes an employee unique? It’s a key question when it comes to enforcing restrictive covenants, otherwise known as agreements barring employees from working for a competitor or client for a period of time. Evan Parness of DLA Piper notes, “For a restrictive covenant to be enforceable, it must be tailored—in geographic, temporal and subject matter scope—to protect a company’s legitimate business interests.” And one of the ways to do so is to prove your employee is “unique.”
In the past, uniqueness was associated more with musicians, professional athletes and actors, says Parness. “To be ‘unique,’ one had to be in the rarefied air of Michael Jordan,” he says. But luckily for employers, employees no longer have to “Be Like Mike” for a noncompete to be enforceable. For example, in one case it was determined an IT employee was unique due to the relationships he cultivated through the use of the company expense account. Another case found a pair of project managers at a communications firm provided unique services by producing “multimedia shows” at corporate meetings.
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