Identify Issues In Non

---
name: identify-issues-in-non-compete-agreement
task_id: employment-labor/identify-issues-in-non
description: Guides counsel in producing a prioritized enforceability memorandum that identifies legal, consideration, and drafting defects in a non-compete agreement, organized by issue priority for use in advising an executive client.
activates_for: [planner, solver, checker]
---

# Skill: Identify Enforceability Issues in Non-Compete Agreement

## 1. Subject-matter triage

- Confirm the governing jurisdiction before analyzing enforceability; non-compete rules are highly state-specific and may turn on statute, common law, or recent legislative change.
- Identify whether the executive is subject to one governing regime or multiple potentially relevant regimes. If more than one jurisdiction is plausibly implicated, enumerate them first and analyze each separately.
- Identify the employment status and chronology: start date, execution date, promotion or role change, termination timing, and any later amendments or acknowledgments.
- Check whether the task is evaluating a single covenant or multiple restrictive covenants in the same package; analyze each restriction separately if they differ in scope, duration, or consideration.

## 2. Failure modes the skill is correcting

- Analyst reviews duration or geography in the abstract without applying the governing jurisdiction’s actual enforceability standard, including whether the covenant is presumptively void, reasonableness-based, or conditioned on statutory requirements.
- Analyst misses the threshold question of consideration when the covenant was signed after employment began, or after a material promotion or role change.
- Analyst treats a confidentiality clause as routine without testing whether its breadth effectively prevents the executive from working in the industry at all.
- Analyst identifies the governing law but does not test whether the forum allows blue-penciling, reformation, or total invalidation, which changes the challenge posture.
- Analyst ignores any tolling, forfeiture, repayment, or non-solicit linkage that can extend the practical burden of the covenant.
- Analyst states conclusions without tying them to the controlling authority that supports the proposition.

## 3. Legal frameworks / domain conventions that apply

- Governing law controls the analysis; cite the controlling statute, regulation, or leading case for enforceability, consideration, and judicial modification rules.
- Many jurisdictions require specific statutory prerequisites for employee non-competes, including earnings thresholds, notice requirements, or limitations tied to legitimate business interests.
- Mid-employment restraints often require new and independent consideration; continued employment alone may be insufficient in some jurisdictions.
- A post-promotion covenant may need fresh execution if the new role materially changes duties, compensation, or access to confidential information.
- Reasonableness review typically focuses on legitimate business interest, duration, geographic scope, and activity scope; overbreadth in any one dimension can defeat enforceability.
- A confidentiality provision can function as a de facto non-compete if it sweeps in general skills, publicly available information, or ordinary industry knowledge without standard carve-outs.
- Some jurisdictions permit judicial narrowing; others invalidate the overbroad restraint or the entire agreement. The remedy rule is part of the enforceability analysis, not an afterthought.
- Tolling or extension language may convert an otherwise facially limited restriction into a materially longer restraint in practice.
- Ancillary clauses may alter risk: non-solicit provisions, garden-leave language, clawback or repayment obligations, and remedies provisions can affect how the covenant is challenged and negotiated.

## 4. Analytical scaffolds

- Start with an overall enforceability assessment that states, in one sentence, whether the agreement appears likely enforceable, vulnerable, or likely unenforceable under the governing law.
- Issue-by-issue analysis:
  - Quote or paraphrase the operative restriction language in neutral terms.
  - State the controlling legal standard with authority.
  - Apply the facts to the standard.
  - Identify the defect or enforcement risk.
  - State the practical consequence for the executive.
  - Assign an ordinal severity label from a consistent scale used throughout the memo.
- Consideration analysis:
  - Determine when the agreement was signed relative to hire date, promotion date, or any material change in employment.
  - Assess whether the source documents show new consideration, continued employment, bonus, equity, promotion, or another legally relevant exchange.
  - Flag any mismatch between the covenant’s execution date and the executive’s actual role or compensation at the time.
- Duration and scope analysis:
  - Test the restriction period, covered territory, and prohibited activities against the governing jurisdiction’s limits.
  - Evaluate whether the restriction reaches beyond the employer’s legitimate business interests or effectively blocks ordinary employment.
- Confidentiality de facto non-compete analysis:
  - Examine the definition of confidential information, carve-outs, exceptions, and use restrictions.
  - Flag provisions that prohibit use of broadly acquired know-how, industry skills, or public information.
- Remedy and modification analysis:
  - State whether the jurisdiction permits blue-pencil, reformation, or no modification.
  - Explain how that rule affects leverage, litigation posture, and settlement strategy.
- Downstream consequence analysis:
  - For each issue, tie the defect to a real-world consequence such as injunction risk, employment mobility limits, negotiation leverage, or litigation exposure.
- Authority discipline:
  - Do not state a legal proposition without naming the controlling authority supporting it.

## 5. Vertical / structural / temporal relationships

- Treat timing as a core part of the analysis: execution date, start date, promotion date, amendment date, and termination date can each change enforceability.
- If the materials include multiple restrictive covenants, analyze how they interact vertically: non-compete, non-solicit, confidentiality, invention assignment, clawback, and repayment terms may reinforce or undermine one another.
- If the agreement incorporates other documents by reference, check those documents for definitions, exceptions, or remedies that affect the covenant’s reach.
- If the covenant applies during employment and after employment, separate those obligations; in-employment loyalty restrictions are not analyzed the same way as post-employment restraints.
- If one provision extends another’s practical duration, make that relationship explicit.

## 6. Output structure conventions

- Write an enforceability memorandum, not a generic list. Begin with a short overall assessment.
- Use a clear ordinal severity scale defined once at the top of the memo and apply it uniformly to every issue.
- Organize the body by prioritized issues, with each issue presented in the same order:
  - Issue title and severity
  - Restriction language or clause summary
  - Governing authority
  - Analysis
  - Practical consequence
  - Recommended next step
- When multiple jurisdictions, time periods, or covenants are in scope, separate them into distinct numbered issues rather than blending them.
- Conclude with a concise Recommended Actions block that assigns an action, a responsible role, and a timing anchor tied to the current negotiation or litigation posture.
- Keep the memo concise but complete; prioritize the defects most likely to affect enforceability, leverage, or remediation strategy.