Despite the building legislative and judicial backlash against covenants not to compete, employers have in some cases utilized liquidated damages clauses, one-sided attorney fee shifting provisions, and provisions giving them the option not to make promised garden leave payments, to increase their power over existing employees.
Courts may, however, use their equitable powers to police any provision of a noncompetition covenant to ensure that it does not unreasonably restrict competition. Accordingly, employers should carefully consider whether including such provisions is worth the risk they pose to the enforceability of covenants not to compete.
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