What if employee is forced to sign noncompete agreement?
I am frequently asked by employees about whether their covenants not to compete are enforceable, given that they had no choice but to sign them. Often, an employer will say to a newly-hired employee, "You need to sign this covenant not to compete if you want to continue working here." If the employee does so, can he or she later argue that the employer really didn't allow the employee to make a free choice?
Quite frankly, this is likely to be a difficult argument to make in Texas. There is very little case law on this point. However, the notion that an employee can avoid a covenant not to compete because it was signed under duress (or because it is what the courts sometimes call an "adhesion contract") may not be very viable here.
Over and over, Texas courts have affirmed the enforceability of noncompete agreements. Most of these agreements are required by the employer to be signed, if the employee wishes to continue employment. Based upon Texas case law as it exists today, there is little reason for optimism that a Texas court would invalidate a covenant not to compete because the employer made signing the covenant a condition of continued employment. Of course, in a particular case the court might do so, but it is probably an uphill battle.
