In this blog post, we will discuss why it is so important to make the restrictive covenant independent of your employment agreements. Many former employees often are able to void their entire employment agreement by arguing that the former employer breached an obligation under the agreement such as paying a bonus or salary. When the former employee raises this issue, an injunction hearing is scheduled regarding the restrictive covenant and more often than not, the former employer is unable to meet the high burden for an injunction as the employee has managed to cast a shadow on the employer’s failure to perform under the agreement.
This type of situation can be avoided merely by incorporating the restrictive covenant as an “independent covenant” or adding a severability provision. This issue was raised in the case of Orkin Exterminating v. Gill, 222 Ga. 760, 762-63, 152 S.E.2d 411, 413 (1966). In Orkin Exterminating, the agreement stated “These covenants [restrictive] on the part of the employee shall be construed as an agreement independent of any other provision in this agreement, and the existence of any claim or cause of action of the employee against the company whether predicated on this agreement or otherwise, shall not constitute a defense to the enforcement by the company of said covenants.” In light of this language, the court allowed the restrictive covenant provision to proceed independently of the employer’s alleged wrongdoing.
If you are an employer who frequently incorporates restrictive covenant language in your employment agreements, consider the above and take steps to ensure that your restrictive covenant is independent of the employment agreement and include severability language. In addition, double check all of the employment agreements that the employee is required to sign to make sure that they do not conflict with the independent nature of the restrictive covenant.