Georgia law allows employers to institute non-competition covenants to protect their businesses. But, a non-competition covenant that would be enforceable after the end of the employment relationship cannot be imposed on every type of employee. Indeed the term “employee” means something specific in the context of a non-competition covenant.

“Employee” in this area means an executive, anyone, including independent contractors, who possesses confidential information of value to the business, or who has special skills, abilities, customer contacts, or information by reason of having worked in the business, and those persons who have certain specific types of agreements with the business such as franchises, distribution agreements, leases, licenses, or partnerships. The term specifically excludes those who lack selective or specialized skills, knowledge, abilities, customer contacts or information, or confidential information.

Even if a person employed in the business falls within the definition of an employee, only the following classes of employees are subject to a non-compete:

  • Employees who customarily and regularly solicit customers or prospective customers;
  • Employees who customarily and regularly engage in making sales or obtaining orders or contracts for products or services to be performed by others;
  • Employees who perform the following duties:

o   Have a primary duty of managing the enterprise or a customarily recognized department or subdivision;

o   Customarily and regularly direct the work of two or more other employees; and

o   Have the authority to hire or fire other employees or have particular weight given to suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees; or

  • Perform the duties of a key employee or of a professional.

If a person working in the business falls within the list above, then a non-compete might well be enforceable, assuming it is properly drawn as to the time, geographical limitations, and scope of activities covered.

If you are considering non-competes to protect the investment you’ve made in your business, or you are considering taking a position that has a non-compete attached, then call us at 912-401-0121. We can help.