Are non-competes enforceable? It depends on your state

Four states void them, a dozen condition them on earnings or notice, and the rest apply a reasonableness test. Here is how to work out where yours falls — and what to do if you have signed one.

Published July 25, 2026·4 min read

Whether a non-compete is enforceable depends on the state whose law applies, and the answers fall into three groups. Void for employees: California, Minnesota, North Dakota, Oklahoma. Conditional: a growing set of states that allow non-competes only above an earnings threshold, or with advance notice, or with paid garden leave. Reasonableness test: the remaining majority, where a court asks whether the restriction protects a legitimate interest and is reasonable in duration, geography and scope.

Group 1: void

In California, Minnesota, North Dakota and Oklahoma an employee non-compete is unenforceable as a matter of law. California goes furthest: attempting to enforce a void covenant can itself expose an employer to liability, and employers have faced notice obligations toward employees who signed one.

Two things remain enforceable in these states: confidentiality obligations and, in most, trade secret protection. California also restricts customer non-solicits, so employers there rely mainly on confidentiality and trade secret law.

Group 2: conditional

Washington, Colorado, Illinois, Oregon, Maine, Maryland, New Hampshire, Rhode Island, Virginia, Massachusetts and Nevada each impose statutory conditions. The common mechanisms:

Earnings thresholds — below a stated income, a covenant cannot apply at all. Thresholds are usually indexed annually.
Advance notice — the agreement must be given a set number of days before signing, often 10 or 14 business days, sometimes with a written recommendation to consult a lawyer.
Garden leave or extra consideration — payment during the restricted period, or something beyond continued employment.
Occupational bans — physicians, nurses, broadcasters and hourly workers are carved out in various states.

Because these figures change with legislation and indexation, treat any specific number you read — here or elsewhere — as a prompt to check the current statute, not as the answer.

Group 3: the reasonableness test

Elsewhere, courts weigh:

Legitimate protectable interest — confidential information, customer goodwill, specialised training. Not simply avoiding competition.
Duration — twelve months is the common benchmark; two years is defensible for senior people in some states; five is rarely enforced.
Geography — where the employee actually worked or the employer competes. Unlimited geography is the most common defect.
Scope of activity — barring the specific competitive role, not every job at any competitor.
Hardship and public interest — whether enforcement leaves the person unable to earn a living, and whether the public loses access to a needed service.

What happens to an overbroad covenant also varies: some states reform it to reasonable terms, some blue-pencil by striking words only, and some void it entirely. In that last group an aggressive draft leaves the employer with nothing.

If you have signed one

Read what it actually says. Many documents labelled non-compete are really non-solicits, which are narrower and more often enforceable. Check the trigger too — some apply only on resignation, not on being laid off.

Identify the governing state. A choice-of-law clause pointing at an employer-friendly state does not always work: courts frequently apply the law of the state where the employee lives and works, particularly where that state has a strong public policy against non-competes.

Assess the practical risk. Employers do not sue everyone. The realistic questions are whether you hold genuine customer relationships or confidential information, whether the new role directly competes, and whether the employer has a history of enforcing.

Negotiate before you leave. A written release or a narrowing of the covenant is far easier to obtain while the relationship is still cordial than afterwards. Ask for a carve-out for the specific role you are taking.

Get advice before you start the new job, not after you have resigned. The cheapest moment to fix this problem is before anyone has committed.

If you are the employer

Use non-competes narrowly and only for people who genuinely hold protectable interests. Support them with confidentiality and IP assignment, which work everywhere. Review your paperwork against the state where each employee actually works, not where the company is headquartered. And when you ask an existing employee to sign, give real consideration — a bonus or a raise — because continued employment alone will not do in many states.

The documents

Our non-compete template state-gates the covenant automatically, substituting confidentiality and non-solicitation in the four states where it is void, and flags unlimited geography, excessive duration, missing consideration and the states with statutory conditions.

→ Non-Compete Agreement · Non-Disclosure Agreement