How do you prevent your best salesperson from leaving your company and joining up with your biggest competitor? The reality is that you probably can’t.

Even if your employee agrees in writing not to compete with your company or solicit its customers for a certain period of time following his termination, it is just as likely as not that a court will decline to enforce the agreement.

Fortunately, there are a number of practical things that your company can do to increase the chances that these post-employment restrictions will be enforced and to lessen the blow when a key employee leaves to join the competition.

There are two types of agreements that are commonly used to restrict an employee’s activities after termination: (1) the ‘non-competition agreement’ or ‘covenant not to compete,’ which typically restricts the employee from becoming employed by or otherwise associated with any company that ‘competes’ with the employer or is engaged in the same business or industry as the employer for a certain period of time after termination; and (2) the ‘non-solicitation agreement,’ in which the employee agrees not to indirectly or directly solicit business from any of the employer’s clients or customers for a certain period of time following termination.

Under Massachusetts law, an employee, upon terminating his employment, may carry away and use the general skill or knowledge acquired during the course of his employment. An employee’s right to use his or her general knowledge, experience, memory, and skill promotes the public interest in labor mobility and the employee’s freedom to practice his or her profession. For this reason, all non-compete and non-solicitation agreements are very closely scrutinized by courts.

In Massachusetts, a court will only enforce a post-employment restriction to the extent that it is necessary to protect the employer’s ‘legitimate business interests,’ which have been defined to include only the protection of ‘trade secrets’ and ‘customer goodwill.’ Protection from ordinary business competition is not considered a legitimate business interest. Therefore, if a post-employment restriction is worded too broadly and goes beyond protection of trade secrets or customer good will, as the courts narrowly define those terms, it is likely to be struck down as unenforceable.

Non-compete and non-solicitation agreements must also be reasonably limited in time and geography and not be harmful to the public interest. Although there are no hard and fast rules and many exceptions, a one-year restriction is generally considered to be reasonable while a restriction of more than two years is generally considered not to be.

Whether the geographic scope of the restriction is reasonable depends on the type of business and the employee’s activities. If, for example, a business has a national clientele and the employee deals with customers throughout the U.S., a nationwide restriction may be considered reasonable. If, on the other hand, the company’s market is limited to Springfield, Mass. and surrounding communities, a statewide restriction would probably be found to be unreasonable.

A blanket non-competition agreement which prevents an employee from joining up with a competitor or even being employed in the same industry as his or her former employer following termination, will usually be found to be unenforceable because it seeks protection from ordinary competition, unduly restricts an employee’s right to ply his or her trade, and limits labor mobility, which is contrary to the public interest. On the other hand, a narrowly tailored non-solicitation agreement which only prohibits the employee from actively soliciting his former employer’s customers will be enforced provided it meets the other requirements mentioned above; that is, it is reasonably limited in time and scope and seeks to protect either trade secrets (for example, confidential customer information which the employee has taken and is using to solicit business for his new employer) or customer goodwill (the customers which the employee is soliciting are longstanding, loyal customers of the former employer).

A recent case from Worcester Superior Court illustrates this point. In Proctor Group Ins. Agency Inc. v. Jones, the Proctor Insurance Agency sued a former employee, Jones, who had gone to work for a competing agency in violation of his employment contract. The employment contract included a non-competition covenant coupled with a non-solicitation provision which prohibited Jones for two years from soliciting business or doing business with any person or corporation which was a customer of the employer at the time of the employee’s termination or within the preceding 12 months. Although the Proctor agency presented evidence that two of its customers had left to join the competing agency because of Jones’ solicitation, nevertheless, the court declined to award summary judgment to Proctor, finding that the non-solicitation clause may not be enforceable.

The court in Proctor cited an earlier case with similar facts in which it was held that a post-employment restriction that prohibited an employee from providing services to any of the customers of a former employer, even if the employee did not actually solicit those customers, sought to prevent ordinary competition, violated public policy, and was, therefore, unenforceable.

Despite all your best efforts, sooner or later, there is good chance that a trusted and valuable employee will suddenly leave your company to work for your biggest competitor or start his or her own competing business. When this happens, you will want to take immediate action to protect your business. You may even be inclined to go to court and seek an injunction against the employee and his new company to prevent further harm to your business.

However, litigating these disputes is expensive and time-consuming and may require that your customers become involved as witnesses. Your company may also be compelled to disclose information about its business that it would rather not disclose.

Before filing a lawsuit against a former employee for breaching a non-compete or non-solicitation agreement, you should carefully consider: will the employee really be in a position to hurt your company? How good is your agreement? Is there a risk that an unfavorable precedent may be established? And is there a possibility that the employee will file a counterclaim against your company?

So, what can you do, short of litigation, to protect your company when a key employee leaves? Here are some suggestions:

Keith Minoff is an employment law specialist with the Springfield-based firm Robinson Donovan; (413) 732-2301.)