Although the criteria for non-compete agreements vary from state to state, in order to survive judicial scrutiny employers need to consider drafting non-compete agreements that are reasonable in time and geography. Further, the agreements should not be overly burdensome to the employee, not create public harm and be necessary to protect an employer's legitimate business interests. If non-compete agreements do not adhere to these criteria, courts can find the agreements unenforceable.
Traditionally, non-compete agreements are usually targeted to higher-level employees who have industry-specific knowledge that would pose a threat to the employer if they were to begin to work for a competitor. Without question, Jimmy John's use of non-compete clauses for lower-paid hourly workers is unusual and perhaps unprecedented. It will be up to the courts to determine whether Jimmy John’s may have overreached in its attempt to protect its business interests.