In Fifield v. Premier Dealer Services, Inc. 2013 IL App (1st) 120327, http://www.state.il.us/court/Opinions/AppellateCourt/2013/1stDistrict/1120327.pdf the Court squarely held that two years of continued employment is required to uphold a noncompetition or nonsolicitation provision.
Facts and Procedural History
Plaintiff resigned about three months after starting his job as an insurance salesman and went to work for a competing firm. He preemptively sued his former employer seeking a declaration that the noncompete he signed wasn’t enforceable. employment contract were unenforceable. The trial court agreed and granted summary judgment for the plaintiff. The employer appealed.
Court rejected the employer’s two main arguments: that (1) the two-year consideration rule didn’t apply because the Plaintiff signed the restrictive covenants before he was hired (and so this wasn’t really a post-employment restriction at all); and (2) the offer of employment itself was sufficient consideration to support the noncompete and nonsolicitation provisions – since Plaintiff was free to refuse to sign the employment contract and go work somewhere else.
The Court held it didn’t matter whether Plaintiff signed the covenants before or after he was hired since at-will employment can constitute an “illusory benefit” as the employer can fire (and the employee can quit) at any time for any reason.
The Court also held that the two years of continued employment consideration rule applies even where an employee resigns on his own (like Plaintiff). Fifield, ¶ 19. And since Plaintiff was only employed for a little more than 3 months after he signed the noncompete, this fell far chronologically short of the requisite two-year period. Fifield, ¶ 19. In addition, the “first-year provision” (Plaintiff’s firing without cause during first employment year nullifies restrictive covenants) didn’t affect the Court’s analysis: “at most, [Plaintiff’s] employment was only protected for one year, which is still inadequate under Illinois law.” Id.
Take-away: Fifield could spell trouble for employers because it seems to open the door for employees to breach restrictive covenants with impunity – so long as they resign within two years of their start date. The case also shows that courts may view at-will employment as “illusory benefit” and deem such employment insufficient consideration to enforce post-employment restrictions. In addition, based on the Court’s discussion of the “first year provision”, employers may be well-served by providing that restrictive covenants won’t bind the employee if he’s fired without cause within two years of his start date. This would seem to make it easier for an employer to argue that post-employment restrictions are enforceable.