Prior to the enactment of Georgia's Restrictive Covenant Act ("RCA") in May 2011, Georgia courts uniformly held void and unenforceable "in any capacity" non-compete provisions in the employer-employee context. "In any capacity" non-competes are those provisions that prohibit an employee from working for a competitor in any capacity and not limited to the types of duties that the employee performed for his current employer. And under Georgia's prior common law, a court was not allowed to revise an otherwise void and unenforceable provision to render it enforceable.
Under the RCA, however, the court is expressly allowed -- but not required -- to "modify" an overbroad non-compete to render it enforceable. There have been some cases since the enactment of the RCA that have attempted to define what "modify" means under the RCA.
With this backdrop, in mid-December 2022, in Amspec, LLC v. Calhoun et al, a federal court in the Southern District of Georgia addressed a non-compete provision which stated, among other things, that the employee could not, "as an employee, employer, owner, operator ..." work for "an entity engaged in the same or similar business as AmSpec ..." where he "contribute[d] his knowledge" to that competitive company.
After a lengthy discussion of what "contributing his knowledge" meant, the court moved to "the janitor rule," i.e., the employee's argument that the provision, as drafted, prohibits the employee "from working in any capacity [for a competitor] ......
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