How to check if my non-compete is enforceable

Counteroffer · Answers · non-compete Source: https://trycounteroffer.com/answers/how-to-check-non-compete-enforceability

Short answer: Check enforceability by walking through five questions in order: (1) Does your state void or restrict non-competes broadly? (2) Do you meet the salary threshold if your state has one? (3) Did the agreement comply with state-specific procedural requirements? (4) Is the scope (duration, geography, activity) reasonable? (5) Did you receive adequate consideration? If the answer to any of these is unfavorable, the non-compete may be unenforceable. For a thorough analysis with cited authority for your specific situation, use a contract review service or employment attorney.

The 5-question diagnostic

Walk through these questions in order. A "no" or unfavorable answer at any step is a serious indicator that the non-compete may be unenforceable.

1. Does your state broadly void or restrict employee non-competes?

If yes, the non-compete may be unenforceable as a matter of state law:

Broadly void: California, North Dakota, Oklahoma, Minnesota (post-2023)
Restricted by salary threshold: Washington ($116,594.17), Illinois ($75K), Colorado ($124,500), Oregon (~$108K), DC ($150K) for 2024
Strict procedural requirements: Massachusetts (post-October 2018)

For these states, additional analysis may be moot or simpler. Document your state of employment and consult state-specific resources.

2. Do you meet your state's salary threshold (if applicable)?

If your state has a salary threshold and you're below it, the non-compete is generally unenforceable regardless of any other factor.

Earnings include base salary plus earned bonuses and commissions, computed on an annualized basis from W-2 reported income.

If your earnings are below the relevant threshold for your state, the analysis is largely complete: the non-compete shouldn't be enforced against you.

3. Did the agreement comply with state-specific procedural requirements?

Several states require specific procedural steps for non-compete enforceability:

Massachusetts: 10-business-day notice before signing, statement of right to consult counsel
Illinois: 14-day notice before signing or before becoming effective, statement of right to consult counsel
Washington: Written notice at offer of employment, or additional consideration if added mid-employment
Oregon: Written notice 2 weeks before start date

If your agreement failed to comply with applicable procedural requirements, the non-compete is unenforceable for that defect.

4. Is the scope reasonable?

Check each scope dimension:

Duration: 6 months or less is generally fine; 12 months is typical; 18 months is heavily scrutinized; 24+ months is rarely enforced
Geography: Should match the employer's actual market and your actual territory; continental or national scope is presumptively overbroad
Activity: Should be tied to specific competitive activity, not employment in the industry generally
Legitimate business interest: The employer must identify a specific protectable interest (trade secrets, customer goodwill, specialized training)

Overbroad scope often makes the agreement vulnerable to blue-penciling (narrowing by court) or voiding (depending on state).

5. Did you receive adequate consideration?

For at-hire agreements, the job offer itself is sufficient consideration. For mid-employment agreements:

Illinois (Fifield rule): Continued employment of less than 2 years is generally insufficient; new compensation, equity, or promotion required
Pennsylvania, Washington, others: Specific additional consideration required
Most states: At least some consideration beyond continued employment

If you signed mid-employment without receiving new compensation, equity, or promotion specifically tied to signing, the non-compete may be unenforceable for lack of consideration.

Examples

Example 1: California software engineer

State: California
Step 1 conclusion: California broadly voids employee non-competes under § 16600
Result: Non-compete almost certainly unenforceable. Document residence and work location.

Example 2: Illinois sales rep earning $60,000

State: Illinois
Salary: $60,000
Step 2 conclusion: Below Illinois threshold ($75,000)
Result: Non-compete unenforceable due to salary threshold. Document earnings.

Example 3: Massachusetts marketing manager signed mid-employment, October 2020

State: Massachusetts
Agreement signed mid-employment
No garden leave; no specific notice; right-to-counsel statement missing
Step 3 conclusion: Procedural defects under G.L. c. 149 § 24L
Result: Non-compete likely unenforceable for procedural defects.

Example 4: Texas senior engineer with 24-month non-compete, continental geography

State: Texas
Salary above threshold (no Texas threshold anyway)
No procedural defects
24-month duration, "any company that competes" activity scope, "United States" geographic scope
Step 4 conclusion: Scope likely overbroad on duration, geography, and activity
Result: Non-compete likely blue-penciled to 12 months, narrower geography, narrower activity scope under Texas law. Some portion may remain enforceable.

When the 5-question check isn't enough

The diagnostic above covers the most common bases for unenforceability. For specific or complex situations, you'll want a more thorough analysis:

Choice-of-law conflicts (different states for signing, work location, residence)
Recent legislative or case law developments
Industry-specific rules
Active litigation or enforcement context
Federal FTC rule status interaction with state law

For situations where the stakes justify more thorough review, a delivered enforceability analysis covers all these factors with cited authority. See Non-Compete Review. $199, 24 hours.

Get your contract reviewed

If you want a delivered review of your specific document with cited authority and counter language, see https://trycounteroffer.com/non-compete.

Last updated: Sun May 31 2026 00:00:00 GMT+0000 (Coordinated Universal Time)

Counteroffer is a contract analysis service, not a law firm. This page is informational, not legal advice.