The short answer is that if your non-compete agreement is controlled by Oklahoma law the non-compete agreement is not enforceable if it goes beyond the limitations in Title 15 O.S. section 219.A.
The Law
With a couple of exceptions, Oklahoma law is clear that a former employee is allowed to work in his or her chosen business or industry even if a piece of paper says otherwise. While competition is allowed, Oklahoma law prohibits a former employee from soliciting the established customers of the former employer. When the Supreme Court of Oklahoma addressed the non-compete issue in 2011 it was crystal clear about enforceability:
Title 15 O.S.2001 § 219A is the Legislature’s pronouncement on Oklahoma’s public policy regarding covenants not to compete. It provides that where an employee has executed a covenant not to compete with an employer, the employee “shall be permitted to engage in the same business as that conducted by the former employer or in a similar business as that conducted by the former employer as long as the former employee does not directly solicit the sale of goods, services or a combination of goods and services from the established customers of the former employer.” The statute goes on to provide that any provision in a contract between an employer and an employee in conflict with the provisions of the section “shall be void and unenforceable.
¶ 21 Subsection A utilizes the mandatory term, “shall,”in association with the employee’s right to engage in the same or similar business as that of the employer while subsection B provides that “any” provision in a contract between the employer and employee conflicting with those terms “shall be void and unenforceable.” The term “any” is all-embracing and means nothing less than “every” and “all.”The plain, clear, unmistakable, unambiguous, and unequivocal language of 15 O.S.2001 § 219A prohibits employers from binding employees to agreements which bar their ability to find gainful employment in the same business or industry as that of the employer. The only exception allowed by the statutory provision is that the employee may be barred from soliciting goods or services from the employer’s established customers.
Protections for the Employer
An employer who invest its’ resources in training an employee and has shared confidential information with the employee still has ways to protect itself. A strong employment agreement providing protection for confidential information and trade secrets goes a long way to protect an employer’s interest.
To sum it up, a former employee can compete against his former employer. However, the former employee cannot do it using the employer’s confidential information or by directly soliciting the former employer’s established clients.
If you have questions about Oklahoma non-compete agreements from either the employee or employer perspective, please feel free to email or call me. I have worked with both employers and employees so I understand the issues from both directions.
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