No matter whom you ask, noncompetes are difficult to enforce. Despite strong interests of employers in protecting customer goodwill and other assets, enforceability is determined by courts on a state-by-state and case-by-case basis. Some courts, like those in California, refuse to enforce noncompetes altogether. Others, like those in Maryland, will enforce them only if they meet common law standards of reasonableness.
At the most basic level, to be enforceable, noncompetes must: (1) establish that the employer has a legitimate, protectable interest; (2) be drafted narrowly enough to protect that interest without overreaching; and (3) not violate the public interest. In their analysis, courts review facts relating to the former employer, the former employee, and the new employer, and normally focus heavily on the first two factors. Two recent court decisions, however, added a new player in the context of government contracting: the government itself. Furthermore, an issue that is normally given short shrift in noncompete analysis, public interest, played an important role in the outcome of both cases. Here's a look at how the courts reached their decisions.