Can my non-compete be enforced if I work remotely?

Counteroffer · Answers · non-compete Source: https://trycounteroffer.com/answers/non-compete-remote-work

Short answer: Remote work has shifted non-compete enforcement toward the employee's actual location rather than the employer's headquarters. California's 2024 amendments (SB 699) explicitly apply § 16600 to remote workers based in California regardless of where the employer is or what law the contract chooses. In other states, the analysis is still developing but trends toward applying the law where the employee actually works. Document your work location carefully; it can be the difference between enforceability and unenforceability.

The shift toward employee location

Traditional non-compete enforcement applied the law of the employer's headquarters or the state designated in the contract's choice-of-law clause. Remote work has destabilized this:

Employees increasingly live in different states than their employer
Choice-of-law clauses are being challenged when they conflict with employee residence
Several states have explicitly enacted laws that apply based on employee location

The current trajectory: employee location matters more than employer location for non-compete enforcement.

California's 2024 amendments

California Senate Bill 699 (2023, effective 2024) codified the protective extension of § 16600 to remote workers. Key provisions:

Non-competes are unenforceable in California regardless of where signed
Employers cannot enforce non-competes against California-based employees through out-of-state choice-of-law clauses
California employees have a private right of action against employers that attempt to enforce void non-competes
Attorney's fees are recoverable for prevailing employees

The practical effect: if you work in California, your employer cannot enforce a non-compete against you regardless of:

Where the employer is headquartered
What state the contract was signed in
What state the contract chooses as governing law
Whether the employer ever had a California presence

Document your California residency and work location carefully. California employment records, tax filings, and registration of where you perform work are all relevant.

Other states' approach

States outside California are working through remote work analysis with less explicit guidance:

States that void or restrict non-competes broadly (ND, OK, MN post-2023):

These states' protections likely apply to remote employees based in those states, though the case law is still developing.

States with salary thresholds (WA, IL, CO, OR, DC):

For remote employees, the salary threshold typically applies based on the employee's actual earnings, regardless of where the employer is. If your earnings are below threshold, the non-compete is unenforceable against you.

States with reasonableness review (most others):

The reasonableness analysis considers the employee's actual location, work territory, and protected interest. A non-compete signed under New York law and applied to a remote employee in Florida might face different scrutiny than the same agreement applied to a New York-based employee.

Choice-of-law clauses and remote work

Most employment agreements include a choice-of-law clause specifying which state's law governs. For traditional employment, the chosen state is often the employer's headquarters. For remote work, this becomes contested:

California's position: Choice-of-law clauses cannot defeat § 16600 protection for California-based employees (SB 699). The California court will apply California law regardless.

Other state position: Courts increasingly apply public policy analysis to choice-of-law clauses in employment contracts. If the chosen state's law would void protections required by the employee's actual state, the chosen state's law may not be applied.

The specific test: Restatement (Second) of Conflict of Laws § 187 considers whether applying the chosen law would violate a fundamental public policy of the state with the most significant relationship to the transaction.

For employees in protective states (CA, MN, ND, OK, etc.), choice-of-law clauses selecting non-compete-friendly states are increasingly likely to fail.

Practical implications for remote workers

If you're a remote worker considering a competitive move:

Document your actual work location. Keep records of where you actually perform work: home address, internet connection, equipment shipping addresses, tax filings, state unemployment registrations.

Identify which state's law most likely applies. Generally, the state where you actually work has the strongest claim to apply its law. Choice-of-law clauses to other states are increasingly vulnerable.

Don't rely solely on the choice-of-law clause. A choice-of-law clause selecting Delaware in your favor doesn't necessarily save you if you actually work in a non-compete-friendly state.

Plan around the protective state. If you live in California, you have the strongest protection. If you live in Texas, you have weaker protection. Knowing your actual situation matters.

Consider relocation timing. Moving to a protective state before challenging a non-compete may strengthen your position. Moving away may weaken it.

Remote work and customer non-solicits

The same remote-work analysis applies to customer non-solicits. If you served customers across multiple states from a single home office, the customer non-solicit's geographic scope is harder to define.

Courts are working through whether customer non-solicits should be limited to:

Customers in states where the employee actually traveled
Customers in states where the employer has operations
All customers the employee actually serviced regardless of location

This is still evolving. Document your specific customer relationships and work locations carefully.

What to do next

If you're a remote worker with a non-compete and considering competitive employment, a delivered analysis tailored to your specific work location, employer headquarters, and applicable choice-of-law analysis can clarify your position. We deliver one in 24 hours for $199. See Non-Compete Review.

Sources

Cal. Bus. & Prof. Code § 16600.1 (SB 699, 2023)
Cal. Bus. & Prof. Code § 16600.5 (AB 1076, 2023)
Restatement (Second) of Conflict of Laws § 187
Cal. Lab. Code § 925 (limitations on choice-of-law and forum clauses for California employees)

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.