I Signed a Noncompete. What Can I Do?

In many states, a judge who finds a noncompete too broad will narrow it — cut three years to one, or shrink a statewide territory down to a county — and then enforce the trimmed-down version. Wisconsin generally does not do that.

Under Wis. Stat. § 103.465, a covenant imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant that would have been reasonable — Wisconsin courts do not narrow, or “blue-pencil,” an overbroad noncompete to make it enforceable.

There is an important qualification. Wisconsin courts have held that where an agreement contains restrictions that are genuinely separate and divisible — drafted as distinct obligations that can stand on their own — each may be analyzed independently. One unenforceable clause does not automatically take the rest of a well-drafted agreement down with it. Whether your restrictions are divisible is a question about how your particular agreement is written, and it is usually one of the first things worth looking at.

Two practical consequences follow. First, an aggressive letter quoting a very broad restriction is not the same thing as a restriction a court will enforce. Second, the reverse is also true: assuming your agreement is void because you have heard Wisconsin is employee-friendly is a bad way to make a decision that could put you in front of a judge on two weeks' notice.

If you are leaving to join or start a competitor, the people you worked with are often the first thing you want to bring. This is the area where employees most often assume they are safe and are not.

Wisconsin treats employee nonsolicitation clauses as restrictive covenants subject to § 103.465. That is good news and bad news. The good news is that an overbroad no-recruit clause — one covering every employee of the company, including people you never met, for an unreasonable period — is attackable on the same grounds as an overbroad noncompete, and the Wisconsin Supreme Court has invalidated such a clause. The bad news is that a narrowly drawn one, aimed at the handful of people you actually worked with, is a much harder target.

Two things make these cases worse than they need to be. The first is recruiting while you are still employed, which converts a contract question into a duty-of-loyalty question. The second is the paper trail — group chats, texts, and “let me know when you're ready” messages are routinely produced in discovery, and they read badly.

If coworkers approach you on their own after you have gone, that is a materially different position than one where you organized a departure. Keep it that way, and keep the record showing it.

Noncompete cases do not move at the pace of ordinary litigation. An employer seeking to stop you will usually ask the court for emergency relief at the outset, and the first hearing can be days away rather than months.

What you are facing

A temporary restraining order is short-term relief, sometimes sought with very little notice, meant to hold things in place. A temporary injunction comes after a hearing and can last through the case. To get one, the employer generally has to show a reasonable probability of success on the merits, that it will suffer irreparable harm without relief, that it has no adequate remedy at law, and that the balance of equities favors an order.

What that means practically

The early hearing is not a sideshow before the real case — in noncompete disputes it frequently is the case. An order that keeps you out of a job for the better part of a year usually ends the dispute on the employer's terms, whatever the eventual merits. Conversely, an employer that fails to get one has lost most of its leverage.

What to do immediately

• Preserve everything, including your personal devices and accounts. Do not delete.
• Do not contact the customers or employees named in the filing.
• Tell your new employer at once, because it may be a defendant too.
• Collect every agreement and your own timeline of events.
• Get counsel involved now. The response window here is measured in days.

One point of perspective, because these filings are designed to be frightening: the employer's burden at this stage is real, the Wisconsin standard for enforceability is demanding, and delay by the employer in bringing the motion undercuts the irreparable-harm argument it has to make. Being sued is not the same as losing.