Assessing the reasonableness of restrictive covenants — a split in the appellate court

After a 2009 4th District appellate court case, it looked like employers no longer had to prove they were protecting a "legitimate business interest" to make an employee non-complete provision stick. As long as they could show that the length and geographic scope of the provision were reasonable -- that they weren't stopping ex-employees from competing for too long or from too far away -- that was enough. Then the 2nd District decided the Reliable Fire case last month. And there the court wasn't quite ready to cast the legitimate-business-interest test aside. So what did they decide? Well, that's where things get complicated. Bottom line, though as Michael P. Tomlinson observes in the latest issue of The Corporate Lawyer (newsletter of the ISBA's Section on Corporate Law), "the appellate court is now fractured severely regarding how to analyze whether a restrictive covenant is reasonable in scope." He explains the details.