Restrictive Covenant and Departure Checklist: Drafting, Onboarding, Exit, and Enforcement

By Casey Scott McKay · 2025-01-04

Eighteen phases covering the whole life of a restrictive covenant program, from the state matrix that replaces the national template to the injunction motion three years later. The drafting phases give model language for the clauses that actually hold and flag the two carve-outs employers resist most and that most improve enforceability. A dedicated phase audits the DTSA whistleblower notice, whose absence forfeits fees and exemplary damages in every case and which applies to contractors too. The lifecycle phases cover onboarding certifications, the annual refresh, and the relocation re-papering that is the most common silent defect in a multistate program. The enforcement phases run the seventy-two hours after a resignation in order, with the preservation step that decides cases and the new-employer letter decision that creates as much risk as it resolves. One invented matter, Alderlight Systems, runs throughout.

IP and Technology > Trade Secrets | Checklist | Published 4 January 2025 - Updated 4 March 2025 | Casey Scott McKay - marksy.us

Summary. Eighteen phases covering the whole life of a restrictive covenant program, from the state matrix that replaces the national template to the injunction motion three years later. The drafting phases give model language for the clauses that actually hold and flag the two carve-outs employers resist most and that most improve enforceability. A dedicated phase audits the DTSA whistleblower notice, whose absence forfeits fees and exemplary damages in every case and which applies to contractors too. The lifecycle phases cover onboarding certifications, the annual refresh, and the relocation re-papering that is the most common silent defect in a multistate program. The enforcement phases run the seventy-two hours after a resignation in order, with the preservation step that decides cases and the new-employer letter decision that creates as much risk as it resolves. One invented matter, Alderlight Systems, runs throughout.

Keywords: covenant state matrix · compensation threshold check · advance notice period · independent consideration · garden leave election · customer nonsolicit narrowing · employee nonsolicit risk · confidentiality carve-outs · present assignment invention · prior inventions schedule · dtsa whistleblower notice audit · severability drafting · choice of law limits · relocation re-papering · access logging thresholds · exit forensics protocol · litigation hold · notice letter decision · narrow injunction · hiring-side screening

What this checklist is for

This is the working document for a covenant program and for the day an employee resigns. It does not re-teach the law. If you cannot say in one sentence why the DTSA forecloses an injunction based on what a person knows, read Where an Employee Can Go first. The reasoning behind each box, with model language, is in Drafting and Enforcing Restrictive Covenants. This document tells you what to do, in order.

Who should use it. In-house counsel maintaining employment agreements across states; outside counsel handling a departure; HR leaders who own onboarding and exit; and hiring managers' counsel on the other side of the same problem.

What you'll need before you start. The current employment, confidentiality, invention assignment, and severance templates; a roster by state, role, and compensation band; the equity and deferred compensation documents; the IT access logging capabilities; the exit process as it currently exists; and — for a live departure — the employee's device, accounts, and access history.

The worked matter. Alderlight Systems, industrial sensor software, $85 million revenue, Austin headquarters, engineering in Texas, Colorado, Washington, and California, sales in twelve states, one 2016 template applied to everyone. Ilse Marchetti, VP of Product, resigns to join a direct competitor. She lives and works in California. Before resigning she downloaded 340 files over two evenings, including the product roadmap, the pricing model, and a customer list with renewal dates.

| Phase | What you accomplish | Typical elapsed time | |---|---|---| | 1 | Build the state matrix | 4-8 weeks | | 2 | Draft the customer nonsolicitation | 1-2 weeks | | 3 | Draft the employee nonsolicitation narrowly | 3 days | | 4 | Draft garden leave as an option | 3 days | | 5 | Draft confidentiality with the carve-outs | 1 week | | 6 | Fix the invention assignment | 1 week | | 7 | Audit and add the DTSA whistleblower notice | 1-2 weeks | | 8 | Draft for the severability rule that will apply | 3 days | | 9 | Set consideration and notice mechanics | 1 week | | 10 | Choose law and forum realistically | 3 days | | 11 | Build onboarding | 2 weeks | | 12 | Build the annual refresh and relocation trigger | 2 weeks | | 13 | Build the detection layer and baseline | 4-10 weeks | | 14 | Run the seventy-two hours | 3 days | | 15 | Decide on the letters | 1 week | | 16 | Pick the claim set and the injunction to ask for | 2-4 weeks | | 17 | Run the hiring-side screen | ongoing | | 18 | Budget and review | annually |

Phase 1 — Build the state matrix

[ ] Build a matrix keyed to state of employment × role band × compensation band, and record for each cell:
- Noncompete permitted at all?
- Compensation threshold, and whether it is indexed.
- Maximum duration.
- Advance notice period before signing.
- Written advisory to consult counsel required?
- Independent consideration required mid-employment?
- Garden leave or continued pay required?
- Excluded worker categories — hourly, healthcare, broadcast, physicians, terminated without cause.
- Customer nonsolicit permitted, and how narrow?
- Employee nonsolicit permitted?
- Reformation, blue pencil, or all-or-nothing?
- Penalty for including a void covenant?
- Invention assignment statute and required notice.
[ ] Anchor it to representative statutes: Cal. Bus. & Prof. Code § 16600 and §§ 16600.1, 16600.5; Mass. Gen. Laws ch. 149, § 24L.
[ ] Note the federal overlay: the FTC rulemaking history, and the NLRB position that overbroad covenants covering non-supervisory employees implicate 29 U.S.C. § 157 and § 158(a)(1).
[ ] Review annually. Thresholds are indexed and statutes keep arriving.
- Trap. There is no such thing as a national covenant form. A single template applied to a multistate workforce is exposed on several fronts at once.

Phase 2 — Draft the customer nonsolicitation

[ ] Limit to customers the employee actually served, managed, or had confidential information about, within a defined lookback period.
[ ] Bar active solicitation, not acceptance of unsolicited business.
- Trap. Several states treat an accept-business clause as a de facto noncompete and apply the noncompete rules to it — which, in a state that voids noncompetes, voids it.
[ ] Set twelve months as the default; justify twenty-four in a recital only for genuinely long sales cycles.
[ ] Include the two carve-outs: general advertisements not directed at restricted customers, and customers who initiate contact without solicitation.
- Why. These narrow the clause meaningfully and materially improve enforceability. Employers resist them; the alternative is frequently a void clause.
[ ] Model. For twelve (12) months following termination, Employee will not directly or indirectly solicit any Restricted Customer for the purpose of providing products or services that compete with the Company's Products. "Restricted Customer" means a customer to which the Company provided Products during the twelve months preceding termination and with which Employee had material business contact, or about which Employee received Confidential Information, during that period. Nothing in this Section prohibits Employee from responding to a general advertisement not directed at Restricted Customers, or from providing products or services to a Restricted Customer that initiates contact without solicitation by Employee.

Phase 3 — Draft the employee nonsolicitation narrowly

[ ] Limit to employees the departing employee worked with directly, within a lookback period.
[ ] Bar active recruitment, not hiring generally.
[ ] Carve out general advertisements and employees who initiate contact.
[ ] Twelve months, not twenty-four.
[ ] Keep the categories distinct in your own analysis.
- Trap. An employee's promise not to recruit colleagues is different in kind from an agreement between employers not to hire each other's people, which is a serious antitrust exposure. No employment agreement should create one by implication. No-poach enforcement.
[ ] Note that some courts treat the clause as a restraint on the remaining employees' mobility, and several states apply noncompete rules to it.

Phase 4 — Draft garden leave as an option

[ ] Pair any noncompete with a continued-compensation obligation where a statute requires it, or where you want a materially stronger position.
[ ] Build an election allowing the employer to waive the restriction and stop paying, exercisable on written notice within a stated window.
[ ] Default to waiver if no notice is given.
- Model. Within fifteen (15) days after termination, the Company may elect by written notice either (a) to enforce Section 6.1 and pay Employee fifty percent (50%) of base salary for the Restricted Period, or (b) to waive Section 6.1 entirely. Failure to give notice within that period constitutes an election under clause (b).
- Why the default matters. It forces a deliberate decision at the moment the employer has the information, and prevents a covenant from lapsing into unenforceability because nobody remembered to pay.
[ ] Consider a notice-of-resignation clause as an alternative where the noncompete is unavailable: thirty to ninety days' notice with paid non-working leave, during which the employee remains employed and bound by the duty of loyalty.
[ ] Analyze any forfeiture-for-competition provision in equity or deferred compensation under the state's rules; where the employee works in a state that voids noncompetes, assume it will be treated as one.
[ ] State expressly that the covenants are assignable to a successor in a merger, acquisition, or asset sale.
- Trap. Some states require an express assignment provision or employee consent. A buyer that discovers the covenants did not travel has bought a workforce with no restrictions. See IP Due Diligence Toolkit.

Phase 5 — Draft confidentiality with the carve-outs

[ ] Define confidential information by category — customer lists and contract terms, pricing and cost data, roadmaps and unreleased designs, source code, supplier terms, non-public financials — not by a general phrase.
- Trap. "All information learned in the course of employment" invites a court to read the clause as a disguised restraint and, in some states, to void it.
[ ] Exclude information that is or becomes public through no fault of the employee; that the employee lawfully knew before employment; that is independently developed; or that is rightfully received from a third party without restriction.
[ ] Include an express carve-out for the employee's general knowledge, skill, and experience.
- Why. This is the second clause employers most resist and the second that most improves enforceability, because it tells the court the agreement is not trying to prevent the employee from working.
[ ] Set a duration for non-trade-secret confidential information — two to five years — with trade secrets protected as long as they remain trade secrets.
[ ] Add the statutory carve-outs: protected concerted activity, communications with government agencies, and the Phase 7 notice.

Phase 6 — Fix the invention assignment

[ ] Use a present assignment: "Employee hereby irrevocably assigns," not "agrees to assign."
- Why. The distinction has decided ownership disputes; a promise creates only an equitable obligation.
[ ] Add a further-assurances covenant and an attorney-in-fact appointment.
[ ] Apply the state invention-assignment statute where one exists, excluding inventions developed entirely on the employee's own time without employer equipment, supplies, facilities, or trade secrets, unrelated to the employer's business or anticipated research, and not resulting from work for the employer — and give the required written notice.
[ ] Collect a prior inventions schedule at onboarding, signed even if blank.
[ ] Add a work-made-for-hire recital where applicable, an assignment fallback, and a waiver of moral rights to the extent permitted.
- See. Who Owns the Work?; Transfers, Licenses, and Termination Rights; Copyright Ownership and Chain of Title Checklist.

Phase 7 — Audit and add the DTSA whistleblower notice

[ ] Confirm every agreement governing use of a trade secret or confidential information contains the notice required by 18 U.S.C. § 1833(b).
[ ] Add it to: employment agreements, confidentiality agreements, invention assignments, severance agreements, and contractor and consultant agreements.
- Why. The definition reaches contractors for this purpose, and contractor templates are where the notice is most often missing.
[ ] Understand the consequence of omission: the employer may not recover exemplary damages or attorney's fees under the DTSA against that person.
[ ] Consider the permitted alternative of cross-referencing a policy document that sets out the notice.
[ ] Audit the back catalogue and plan to recover the position at the next agreement refresh, since existing agreements without the notice will not support fees or exemplary damages against those employees.
- Trap. This is a quiet, expensive defect. Fixing it going forward takes an afternoon.

Phase 8 — Draft for the severability rule that will apply

[ ] Determine which regime governs in each state: strict blue pencil, reformation, or all-or-nothing.
[ ] Structure each restriction as a separate, itemized subsection with independent operative language, so a blue-pencil court has something discrete to strike.
[ ] Use stepped alternatives — a primary scope with expressly stated narrower fallbacks operative if the primary fails.
[ ] Include a severability clause but do not rely on it; draft to the narrowest defensible scope for the jurisdiction that will actually apply.
[ ] Plead a reformation request in any enforcement complaint where the state permits it, rather than assuming the court will act unasked.

Phase 9 — Set consideration and notice mechanics

[ ] At hire: present the covenant with the offer, before acceptance and start; observe the statutory advance notice period; deliver the written advisory to consult counsel where required.
[ ] Record both dates — delivery and signature. The gap is the proof.
[ ] Mid-employment: provide identified, separate consideration — a raise, bonus, promotion, equity grant, or lump sum — and recite it in the agreement.
- Trap. In several states continued at-will employment is insufficient, and getting this wrong voids the covenant entirely. It is discovered years later at the worst moment.
[ ] Confirm no excluded worker category applies before rolling a covenant out to a group.

Phase 10 — Choose law and forum realistically

[ ] Choose the law of the state where the employee actually works, and draft to that state's rules.
[ ] Do not rely on a favorable choice of law to save a covenant void where the employee works.
- Authority. Cal. Lab. Code § 925 makes choice-of-law and forum provisions voidable at the employee's election where the employee primarily resides and works in California and was not individually represented by counsel in negotiating the term.
[ ] Plan for the race to the courthouse: the employee files a declaratory action at home while the employer files enforcement in the chosen forum, and the outcome turns on first-filed principles, anti-suit injunctions, and comity — frequently decided in the first seventy-two hours. See Suing First: Declaratory Judgment Actions in Trademark Disputes for the analogous dynamics.

Phase 11 — Build onboarding

[ ] Execute the agreement in week one, with delivery and signature dates recorded.
[ ] Collect the prior-inventions schedule, signed even if blank.
[ ] Collect a written certification that the employee brought no confidential information or materials from any prior employer and is not subject to an agreement preventing the role.
[ ] Deliver a short confidentiality and acceptable-use briefing, in person.
[ ] Provision access to the minimum necessary, with a documented rationale for anything unusual.
[ ] Explain the trade secret classification: what the company treats as confidential, how it is marked, and what may not be done with it.
- Why it counts later. These are the "reasonable measures" the DTSA requires. 18 U.S.C. § 1839(3). See Building a Trade Secret Program That Survives Litigation.

Phase 12 — Build the annual refresh and the relocation trigger

[ ] Annually: a one-page acknowledgment reaffirming the confidentiality obligation and confirming compliance; an access review; and a review of the year's departures for pattern.
[ ] On promotion or material role change: re-scope the covenant, with separate consideration where required.
[ ] On relocation: re-paper to the new state's rules.
- Trap. An employee hired in Texas under Texas covenants who relocates to California is now protected by California law, and the file will not reflect it unless someone looks. Relocation is the most common silent defect in a multistate covenant program.
[ ] On employer-initiated termination: check whether the statute makes the covenant unenforceable on termination without cause, and consider whether a severance agreement is the better instrument — fresh consideration, a fresh acknowledgment, a return-and-certify obligation, and a release, negotiated when the employee has an incentive to sign.

Phase 13 — Build the detection layer and baseline

[ ] Enable bulk download alerts with a threshold, USB device connection logging, personal cloud upload detection, and mail-forwarding rule detection.
[ ] Establish a documented baseline of normal access by role.
- Why. Volume without context proves nothing. The goal is a notification on the second evening of a 340-file download, not a discovery two weeks after the resignation.
[ ] Document the reasonable measures generally: access controls, classification, confidentiality agreements, onboarding and exit procedures, physical controls, and vendor NDAs. 18 U.S.C. § 1839(3).

Phase 14 — Run the seventy-two hours

[ ] Hour 0. Suspend access — email, VPN, repositories, cloud storage, CRM, design tools, building access — at the moment of resignation, not on the last day.
[ ] Hour 0-4. Preserve. Image the laptop and any company mobile device before returning it to inventory, wiping it, or reissuing it. Preserve the mailbox, file-sharing account, and account-level audit logs. Issue a litigation hold.
- Trap. This is the step that gets skipped. A laptop reimaged on day three is a fact the other side will make much of for the life of the case.
[ ] Hour 4-24. Forensic review against the baseline: bulk downloads in the preceding ninety days; USB connections; personal cloud uploads; mail forwarding; printing volume; access outside normal scope; repository cloning.
[ ] Day 1-3. Exit interview with a written certification: devices and accounts held; company information still in the employee's possession; acknowledgment of continuing obligations with the covenants recited; and where the employee is going and in what role.
[ ] Determine where the files went — a personal cloud account, a USB device, a personal email address — because destination matters more than volume.

Phase 15 — Decide on the letters

[ ] To the employee: recite the confidentiality obligation and any enforceable covenants, in a measured tone.
- Trap. Do not recite a covenant that is void where the employee works. In states that make inclusion or assertion of a void covenant actionable, that letter creates liability.
[ ] To the new employer: decide deliberately.
- For. It puts the new employer on notice and supports willfulness later.
- Against. It risks a tortious interference claim where the covenant is void in the employee's state.
- Rule. Send it where the covenant is enforceable and the forensic facts are good. Never send it reflexively, and never before the forensic review.
[ ] Then decide the path: do nothing; monitor; negotiate a narrowed arrangement; seek a TRO; or file suit. Most matters should end at monitoring or negotiation.

Phase 16 — Pick the claim set and the injunction to ask for

[ ] The trade secret claim is usually the case. 18 U.S.C. § 1836 supplies federal jurisdiction, injunctive relief, damages including unjust enrichment, exemplary damages up to twice the award for willful and malicious misappropriation, and fees — the last two subject to Phase 7.
[ ] Ask for what you can actually get: a narrow injunction against use and disclosure of specifically identified materials, a return-and-certify obligation, and a forensic protocol for the employee's personal devices.
- Why. An injunction may not prevent a person from entering an employment relationship, and conditions on employment must rest on evidence of threatened misappropriation rather than on what the person knows. 18 U.S.C. § 1836(b)(3)(A)(i). Nor may it conflict with state law prohibiting restraints on lawful trade.
[ ] Add the duty of loyalty claim for conduct while still employed — competing, diverting opportunities, or recruiting colleagues. It requires no covenant and the evidence is in the same forensic record.
[ ] Add tortious interference against the new employer only where the covenant is enforceable.
[ ] Add conversion or replevin for devices and documents; sometimes the fastest route to getting a laptop back.
[ ] Check preemption of state unfair competition claims by the state trade secret act to the extent they rest on the same facts.
[ ] Plead the CFAA only where access itself was unauthorized. 18 U.S.C. § 1030; Van Buren v. United States, 593 U.S. 374, 389-96 (2021) forecloses the improper-purpose theory.
[ ] Do not build on inevitable disclosure. Its availability varies by state and federal law does not supply it. PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1269-72 (7th Cir. 1995).
[ ] Prepare the motion under Fed. R. Civ. P. 65 with a forensic examiner's declaration, the baseline, the specific materials identified, and a proposed order narrow enough to sign. See Moving for a TRO or Preliminary Injunction in a Trademark Case.
[ ] Price the counterclaims before filing: wrongful termination or retaliation; unpaid wages or commissions, which is frequently the real dispute; declaratory judgment that the covenants are void; statutory penalties for including a void covenant; and tortious interference if you wrote to the new employer.

Phase 14A — Reading the forensic report without overreading it

The forensic report arrives with numbers, and numbers persuade. They also mislead, and the counsel who cannot distinguish signal from artifact will either bring a case that collapses or pass on one that should have been brought.

[ ] Compare against the baseline, always. A VP of Product who accesses 200 files in a normal week has not done anything unusual by accessing 340 in two evenings. The same 340 files from someone who normally touches twelve is a different fact.
[ ] Distinguish access from exfiltration. Opening a file on a company system is not taking it. What matters is copying to removable media, uploading to a personal cloud account, forwarding to a personal address, printing, or photographing a screen.
[ ] Account for the innocent explanations, because opposing counsel will. Automated backup or sync clients that copy whole directories. A migration to a new laptop. A legitimate offline work pattern before travel. A shared drive reorganization. A search that opened many files in sequence. Each produces a spike that looks like exfiltration in a summary and does not survive examination.
[ ] Look at what was taken, not only how much. Ten files comprising the pricing model and the customer renewal schedule matter more than four thousand files of marketing collateral. Identify the specific materials and their value, because the injunction you can get is one that names them.
[ ] Check timing against the resignation. Downloads concentrated in the days before a resignation, outside normal working hours, are the pattern that persuades. Downloads spread evenly over a year are a work pattern.
[ ] Look for deletion and concealment. Clearing browser history, wiping a USB device, uninstalling a sync client, or deleting a mailbox folder after resignation is often more probative than the copying itself, and it also raises spoliation.
[ ] Have the examiner state limitations in the declaration. What the logging did and did not capture, what could not be determined, and what would require the employee's personal device. A declaration that overclaims is dismantled on cross and takes the rest of the case with it.
[ ] Do not let the report drive the decision alone. Combine it with the enforceability analysis from Phases 1 and 10 and with the commercial question: what is actually at risk, and what would a win look like?

Phase 16A — Negotiating the resolution most of these should reach

Most departure matters should not become litigation. The negotiated resolution has a standard shape, and having it drafted in advance shortens every one of these.

[ ] A forensic protocol for the employee's personal devices and accounts, run by a neutral examiner at the employer's cost, with a defined scope and a protective order for anything personal.
[ ] Return and certified deletion of all company materials, with a sworn certification listing what was found and where.
[ ] A narrowed activity restriction for a defined period — away from named accounts or a named product line — rather than a blanket bar on employment.
[ ] An acknowledgment of continuing confidentiality obligations, restated with the specific categories at issue.
[ ] A no-solicitation undertaking limited to named customers and named employees for a defined period.
[ ] A cooperation clause from the new employer: an instruction to the employee not to use the former employer's information, a certification that none was received, and a commitment to segregate the employee from specified work for a period.
[ ] Mutual non-disparagement, scoped narrowly.
[ ] A liquidated remedy or stipulated injunction in the event of breach, so a second round is fast rather than a fresh case.
[ ] Releases, mutual, and a confidentiality clause covering the resolution itself.
[ ] Price the alternative honestly before rejecting a reasonable version of this.
- Why. A negotiated protocol delivers most of what a preliminary injunction would deliver, in three weeks rather than three months, for $25,000 to $60,000 rather than $60,000 to $250,000, without a public record and without the counterclaim exposure. The cases worth litigating are the ones where the employee refuses this, and that refusal is itself informative.

Phase 17 — Run the hiring-side screen

[ ] Ask every candidate whether they are subject to a noncompete, nonsolicitation, confidentiality, or invention-assignment agreement, and ask for the document.
- Trap. "I don't think so" is not an answer. Candidates frequently do not know.
[ ] Assess before the offer, against the law of the state where the candidate works.
[ ] Put it in the offer letter: the company does not want and will not accept any former employer's confidential information; the candidate represents they are not subject to an agreement preventing the role; the candidate will bring no materials.
[ ] Scope the role away from restricted accounts, territory, or product line for a defined period where a covenant may be enforceable, and document the scoping.
[ ] Onboard clean: no devices, files, or personal archives from the prior employer, with a written certification.
[ ] Train hiring managers.
- Why. A manager who asks a new hire to bring the pricing model has created the case, and it is never a legal department decision.
[ ] Respond proportionately to a notice letter: acknowledge, state that the company respects lawful obligations and has instructed the employee, decline confidential information, and say once — calmly — where the covenant is void.

Phase 18 — Budget and review

| Task | Elapsed | Cost | |---|---|---| | State matrix and template rebuild | 4-8 weeks | $25k-$70k | | Whistleblower notice audit and rollout | 1-2 weeks | $4k-$12k | | Detection layer and baseline | 4-10 weeks | $20k-$70k | | Departure forensics, per employee | 3-10 days | $8k-$35k | | Letters and negotiation | 1-4 weeks | $5k-$20k | | TRO and preliminary injunction | 2-10 weeks | $60k-$250k | | Trade secret case through discovery | 9-18 months | $300k-$1.2M | | Through trial | 18-36 months | $800k-$3M | | Defending a departing employee | varies | $75k-$400k |

[ ] Present the first three rows — roughly $50,000 to $150,000, entirely preventive — against the rows below, which start at $60,000 for one motion and reach seven figures.
- Why. In no other area of legal spend is the ratio between prevention and response this favorable, and that comparison is the argument that funds the preventive work.
[ ] Diarize the annual matrix review, the annual acknowledgment, and the annual access review.

Key Authorities at a Glance

| Authority | What it provides | Phase | |---|---|---| | 18 U.S.C. § 1836 | DTSA civil action; injunction limits | 16 | | 18 U.S.C. § 1839 | Reasonable measures; improper means | 11, 13 | | 18 U.S.C. § 1833(b) | Whistleblower immunity and notice | 7 | | 18 U.S.C. § 1832 | Criminal theft of trade secrets | 16 | | 18 U.S.C. § 1030 | CFAA | 16 | | Van Buren v. United States, 593 U.S. 374 (2021) | "Exceeds authorized access" narrowed | 16 | | PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995) | Inevitable disclosure | 16 | | Fed. R. Civ. P. 65 | TRO and preliminary injunction | 16 | | Cal. Bus. & Prof. Code § 16600 | Restraints void | 1 | | Cal. Bus. & Prof. Code §§ 16600.1, 16600.5 | Unlawful to include; notice; fees | 1, 15 | | Cal. Lab. Code § 925 | Choice of law and forum voidable | 10 | | Mass. Gen. Laws ch. 149, § 24L | Notice, consideration, duration, garden leave | 1, 9 | | 29 U.S.C. § 157 | Section 7 rights | 1 | | 29 U.S.C. § 158(a)(1) | Interference with Section 7 rights | 1 | | FTC non-compete rule litigation | Federal rulemaking history | 1 | | No-poach antitrust enforcement | Employer-to-employer agreements | 3 |

The five things people get wrong

Maintaining one national template. It is unenforceable in the states that matter most, and in several it is itself actionable.

Drafting the customer clause to reach every customer. A clause that broad is overbroad on its face and, in several states, is treated as a noncompete and voided.

Omitting the DTSA whistleblower notice. It forfeits fees and exemplary damages in every case, it applies to contractors, and adding it takes an afternoon.

Reimaging the laptop. The single most damaging operational mistake in departure cases, and it happens because IT is following a normal process nobody told them to suspend.

Writing to the new employer first. Send it after the forensic review, where the covenant is enforceable, or not at all.