On May 11, 2011, Georgia passed the Restrictive Covenants Act, which made enforcing employee restrictive covenants far easier than it was under Georgia common law. In an odd twist, a law that Georgia intended to make it easier to enforce restrictive covenants has made it more difficult to enforce employee non-solicits. On June 13 2023, in North American Senior Benefits v. Wimmer, the Georgia Court of Appeals held that an employee non-solicit must include an express geographic restriction—a requirement that previously did not exist under Georgia’s common law regime. Employers should revise any restrictive covenant agreement accordingly to avoid a challenge to the enforceability of an employee non-solicit.
Under Georgia’s common law, the Georgia Court of Appeals squarely held that an employee non-solicit did not require a geographic or relationship-based restriction. And, even after the passage of the Restrictive Covenants Act, most employee non-solicits did not include a geographic restriction. Instead, agreements generally included a provision like the following:
During the term of Employee’s employment and for a one-year period following Employee’s separation from the Company, Employee shall not, directly or indirectly, solicit any employee of the Company to leave the Company’s employment or to join a competitive organization.
Some agreements, in a nod to the Act, added a limitation that the employee non-solicit would be limited to colleagues with whom the employee had...
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