Where an Employee Can Go: Noncompetes, Restrictive Covenants, and Employee Mobility
By Casey Scott McKay ·
The law of employee mobility changed more between 2020 and 2026 than in the previous fifty years, and most form agreements still reflect the older world. This article maps what actually determines whether a departing employee can be stopped - which is rarely the noncompete clause everyone focuses on. It covers the state statutes that void, cap, or condition noncompetes, the compensation thresholds and notice requirements that make an otherwise valid covenant unenforceable, and the reason a customer nonsolicitation clause is usually worth more than a noncompete. It explains the inevitable disclosure doctrine and why it is unavailable in the states where technology companies are concentrated, the trade secret claim that survives everywhere a noncompete does not, and the whistleblower notice requirement that quietly costs employers their fee awards. It closes with what an employer can actually do on the day an employee resigns.
IP and Technology > Trade Secrets | Article | Published 12 March 2024 - Updated 18 December 2025 | Casey Scott McKay - marksy.us
Summary. The law of employee mobility changed more between 2020 and 2026 than in the previous fifty years, and most form agreements still reflect the older world. This article maps what actually determines whether a departing employee can be stopped — which is rarely the noncompete clause everyone focuses on. It covers the state statutes that void, cap, or condition noncompetes, the compensation thresholds and notice requirements that make an otherwise valid covenant unenforceable, and the reason a customer nonsolicitation clause is usually worth more than a noncompete. It explains the inevitable disclosure doctrine and why it is unavailable in the states where technology companies are concentrated, the trade secret claim that survives everywhere a noncompete does not, and the whistleblower notice requirement that quietly costs employers their fee awards. It closes with what an employer can actually do on the day an employee resigns.
Keywords: noncompete enforceability · state noncompete bans · california section 16600 · nonsolicitation of customers · employee nonsolicit · no-hire agreement · garden leave · consideration for restrictive covenants · blue pencil reformation · choice of law forum selection · inevitable disclosure doctrine · defend trade secrets act · whistleblower immunity notice · trade secret misappropriation · exit interview forensics · forward-looking assignment · invention assignment statutes · ftc noncompete rule · nlrb severance · employee mobility litigation
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