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Vulcan Steel Structures Inc. v. McCarty

The non-solicitation of customers covenant in the former employee's contract was unenforceable because it prohibited him from accepting business from unsolicited clients.

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Vulcan Steel Structures, Inc. and affiliated companies “Vulcan” appeal the order declaring the restrictive covenants in an agreement with former employee Gary John McCarty to be unenforceable. We hold that the nonsolicitation of customers covenant in the agreement is unenforceable because it prohibits McCarty from accepting business from unsolicited clients. And the 2008 agreement is not subject to blue-penciling, since it was entered into before the effective date of the act revising the law related to restrictive covenants in contracts. Holton v. Physician Oncology Svcs., 292 Ga. 864, 870 3 n. 4 742 SE2d 702 2013. Accordingly, because the nonsolicitation of customers covenant is unenforceable, none of the covenants in the agreement are enforceable. We therefore affirm.

The facts relevant to the appeal are not in dispute. McCarty was employed by Vulcan from 1996 until May 9, 2013. On October 13, 2008, McCarty signed an agreement that contained confidentiality, noncompete, and nonsolicitation covenants. The nonsolicitation of customers covenant in the agreement provided:

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