The Georgia Court of Appeals recently provided important clarification of the requirements for non-recruitment covenants under Georgia’s 2011 Restrictive Covenants Act. In North American Senior Benefits, LLC v. Wimmer, 2023 WL 3963931 (Ga Ct. App. June 12, 2023), the court held that an employee non-solicitation provision must contain an express geographic limitation to be enforceable. The decision also explained that while courts have some discretion to “blue pencil” (narrow/sever) restrictive covenants to bring them into compliance with Georgia law, a court may not add a geographical limitation to a document lacking that material term.
The Georgia Court of Appeals’ Decision
Georgia’s Restrictive Covenants Act requires that restrictive covenants be “reasonable in time, geographic area and scope of prohibited activities.” Some trial courts in Georgia had already found that this language requires an express geographic restriction in employee non-solicitation provisions, but until now, no Georgia appeals court had addressed the issue.
In the instant case, the plaintiff, an insurance marketing company, sued two former independent agents for violation of their agent contracts. Those contracts contained a non-solicitation provision that for two years after their termination prohibited the agents from soliciting any employee, agent, or independent contractor of the company. The plaintiff claimed the agents had violated this covenant by poaching its employees.
In 2022, Judge...
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