Can We Hire Someone Who Has a Noncompete?

Often, yes. Hiring someone subject to a restrictive covenant does not automatically mean walking away from the candidate — but understanding the agreement and structuring the relationship before the start date has a large effect on the risk you take on.

Reviewed by Michael Cerjak, Barton Cerjak S.C. · Last reviewed September 16, 2026

Before the Offer

Start With the Agreement

Hiring someone who is subject to a restrictive covenant does not mean walking away from the candidate. It means reading the document before the start date rather than after the letter arrives. Ask for the agreement, and read it for what it actually prohibits — which is often narrower, and occasionally much broader, than what the candidate believes it says.

The noncompete itself

What work is restricted, for how long, and where. Check whether it is tied to a territory, a customer set, a product line, or simply to any competitor anywhere.

Customer restrictions

Whether they bar soliciting, or also accepting business. Whether they cover every customer of the former employer, or only accounts the candidate served.

Employee restrictions

Whether the candidate can bring former colleagues with them — which is frequently the part that turns a quiet hire into litigation.

Confidentiality obligations

These usually survive independent of the noncompete, and they are the obligations most likely to create exposure for you.

Geographic and territorial scope

Set the restriction against where your business actually operates and where this role would work.

Choice of law and venue

An agreement governed by another state's law may be enforceable in ways a Wisconsin agreement would not be. Wisconsin's § 103.465 is stricter than most.

What each restriction actually does →

The Wisconsin Test

Is It Enforceable?

If the agreement is governed by Wisconsin law, five questions drive the analysis under Wis. Stat. § 103.465. A restriction that fails is void rather than narrowed — which is a genuinely useful fact when evaluating a candidate.

Legitimate protectable interest?

Trade secrets, confidential information, and customer relationships the former employer paid to build — not protection from ordinary competition.

Reasonable duration?

Measured against how long the protected interest actually stays current.

Reasonable territory or customer scope?

Tied to where the candidate worked and whom they served.

Not harsh or oppressive to the employee?

The practical effect on the candidate's ability to earn a living in their field.

Consistent with public policy?

Including the public interest in competition and in people being able to work.

The full Wisconsin enforceability analysis →

Role Design

Can We Structure Around It?

Sometimes. How a role is designed can affect whether the proposed employment actually conflicts with the restriction as written — a restriction limited to a territory, a customer set, or a product line may simply not reach the job you have in mind.

Questions worth asking before the offer:

Would the candidate serve different customers than the ones covered?
Would they work in a different territory?
Would they work on a different product line or segment?
Could certain named accounts be carved out for the duration of the restriction?
Could the duties differ enough that the restricted activity is not part of the job?
Could the start date follow the end of a short restricted period?

A caution that matters more than the list above. None of these automatically solves the problem. A carve-out that exists on paper and is ignored in practice is worse than no carve-out at all, because it reads as evidence that you knew about the restriction and worked around it. A role design is only worth something if the role is actually performed that way, and if you are prepared to document that it was.

It is also worth being honest internally about what you are buying. If the value of this candidate is specifically the accounts they are restricted from touching, structuring is not going to fix the deal — and proceeding anyway is how new employers end up as co-defendants.

Diligence

What Should We Ask the Candidate?

Do this before the offer, not after the start date. Candidates routinely understate restrictions — usually honestly, because they have not read the document since they signed it.

1

Ask for every agreement, not just the noncompete.

Offer letter, employment agreement, confidentiality, IP assignment, equity documents, severance paperwork, handbook acknowledgments. Get the actual documents rather than a description of them.
2

Ask whether the former employer has already been in contact.

A letter that already exists changes the analysis completely, and candidates do not always volunteer it.
3

Understand what they actually did in the prior role.

Title tells you little. What matters is scope of duties, which is what a reasonableness analysis turns on.
4

Find out which customers and accounts they handled.

Specifically, and in what period. This is what any customer restriction will be measured against.
5

Ask about pending deals and live opportunities.

Work in progress at the former employer is where interference claims are born.
6

Ask whether they intend to approach former colleagues.

Better to know now, and to set expectations, than to find out from opposing counsel.
7

Tell them explicitly not to bring anything with them.

No files, no contact exports, no pricing, no decks, no devices — and do not ask them for any of it during the interview process either.

One thing not to do: do not ask a candidate to bring information from their former employer, and do not accept it if offered. An interviewer asking to see a pipeline report or a pricing sheet to evaluate a candidate creates exposure for your company that no amount of careful role design will undo.

Protect Your Own Company

Hire the Employee. Don't Hire Their Former Employer's Information.

Most new-employer liability is self-inflicted, and it comes from material that was never needed in the first place. This is the line to hold, and to hold visibly.

What you are hiring

Legitimately yours

Their skill and experience
Their judgment and industry knowledge
Their professional reputation
Their ability to do the work
Publicly available information

What must not arrive

Creates real exposure

Customer lists and CRM exports
Pricing sheets, quotes, and margins
Internal presentations and strategy decks
Downloaded files of any kind
Former-employer laptops, phones, or drives
Confidential product or technical material

Make it concrete rather than cultural. Put the instruction in the offer letter, repeat it on day one, have the employee confirm in writing that they have brought nothing, and do not let a former-employer device or personal archive touch your systems. If a former employer later sues, that paper trail is the most valuable thing you will have.

Your Exposure

Can the New Employer Be Sued Too?

It can be named, and in Wisconsin departures that reach litigation it frequently is. Being named is not the same as being liable, and the theories have real elements that have to be proven.

Tortious interference with contract

The usual claim. A plaintiff generally has to show that a contract existed, that the new employer intentionally interfered with it, causation, resulting damages, and that the interference was not justified or privileged. Two points follow. First, if the underlying restriction is void under § 103.465, the interference claim built on it has a serious problem. Second, knowledge matters — which is why documenting that you reviewed the agreement and structured the role around it works in your favor, not against you.

Trade secret and confidential information claims

These are the ones that hurt, because they do not depend on the covenant being enforceable. Under Wisconsin's Uniform Trade Secrets Act and the federal Defend Trade Secrets Act, a company can face exposure for acquiring or using trade secrets it knew or had reason to know were improperly obtained. This is precisely the risk created by letting a new hire's files onto your systems.

What reduces exposure in practice

Reviewing the agreement before the offer, and keeping a record that you did
Written instructions to the employee not to bring or use anything
A role designed around the restriction and actually performed that way
A clean systems record showing no former-employer material arrived
Prompt, measured handling of any letter that does come

None of this is a guarantee. It is the difference between a claim that is uncomfortable and one that is dangerous.

Your Own Response

We Received a Cease-and-Desist Letter

A letter addressed to your company, or copied to it, needs its own response strategy. The most common mistake is assuming the employee's lawyer is handling it.

Your interests and the employee's overlap but are not identical. The employee's priority is keeping the job. Yours includes limiting the company's exposure, protecting your systems record, and deciding how much of a fight this hire is worth. There are also situations where a joint defense makes sense and situations where it creates a conflict — that is a decision to make deliberately, with advice, rather than by default.

What to do in the first week:

Preserve everything, including the employee's onboarding record and systems logs
Verify what actually arrived on your systems, and be certain of the answer
Pull the agreement and read the specific provision being asserted
Do not instruct the employee to delete anything, ever
Decide on counsel before responding, and coordinate the response rather than sending two that do not match

A letter is often an opening position rather than a settled one. Many of these resolve into a narrow, time-limited accommodation — a short carve-out on named accounts, say — that costs far less than either capitulating or litigating.

How a Wisconsin noncompete dispute unfolds →

A Question Worth Asking Early

Should We Indemnify the Employee?

It comes up whenever a strong candidate is nervous, and the honest answer is that it depends on facts specific to the hire rather than on a general rule.

Indemnification can be what closes a candidate who is otherwise afraid to move. It also transfers risk you may not have priced, can complicate your own defense, and in some circumstances is read as evidence that the company knew the hire was contested. The scope matters enormously — defense costs only, or judgments too; capped or uncapped; conditioned on the employee's compliance or not.

The practical point is that this is a question to work through before the offer letter goes out, with the agreement in front of you, rather than after a letter arrives and the candidate asks what you are going to do about it.

Signature Checklist

Before the Candidate Starts: The New Employer Checklist

The second of this site's two checklists. Working through it takes an afternoon and is the cheapest litigation insurance available to a company hiring someone who is restricted.

1

Obtain and actually read every agreement.

Not a summary from the candidate. The documents.
2

Get a legal read on enforceability under the governing law.

Wisconsin's § 103.465 is stricter than most states. If another state's law governs, the answer may be different.
3

Design the role against the restriction, in writing.

Territory, accounts, product line, duties. Record the reasoning so it exists later.
4

Put the no-materials instruction in the offer letter.

In writing, before the start date, not in a conversation nobody can prove happened.
5

Have the employee confirm in writing that they brought nothing.

On day one. Include personal cloud accounts and personal devices.
6

Keep former-employer devices and accounts off your systems.

No plugging in an old laptop, no syncing a personal drive, no forwarding an archive.
7

Brief the manager, not just the employee.

Managers create exposure by asking reasonable-sounding questions about the former employer's pricing or pipeline. Tell them not to.
8

Decide who carries a carve-out, and tell them.

If named accounts are off limits, the sales leadership needs to know before the employee is assigned a territory.
9

Document the start date against the restricted period.

If a short restriction is nearly expired, waiting a few weeks can remove the dispute entirely.
10

Agree in advance who responds if a letter arrives.

Counsel, the employee's counsel, and who speaks for the company.

From the Field

Articles for New Employers

I'm Leaving

I Work Remotely for an Out-of-State Company. Which State's Noncompete Law Applies?

Less settled than you would hope, and often decided by a venue motion rather than by where you live. Because a covenant void in one state can be enforceable in another, the court that hears the case frequently decides the outcome.

Frequently Asked Questions

Questions We Hear in This Situation

Often yes. A restriction does not make a candidate untouchable — but the diligence belongs before the offer, not after a letter arrives. Get the actual agreements rather than the candidate's description of them, have someone read them against the role you are offering, and consider whether territory, accounts, product line or duties can be designed so the job does not conflict with what the restriction actually covers. If the whole value of the hire is the accounts they are restricted from touching, structuring will not fix that.

You can be named, and in Wisconsin departures that reach litigation new employers frequently are. Being named is not the same as being liable. Tortious interference requires proof of an existing contract, intentional interference, causation, damages and a lack of justification — and a claim built on a restriction that is void under § 103.465 has a serious problem. The more dangerous exposure is trade secret and confidential information claims, because those do not depend on the covenant. That risk is almost entirely self-inflicted: it comes from letting the new hire's former-employer files onto your systems.

Anything belonging to the former employer: customer lists and CRM exports, pricing sheets and quotes, internal presentations and strategy documents, downloaded files of any kind, product or technical material, and former-employer laptops, phones or drives. Put the instruction in the offer letter, repeat it on day one, and have the employee confirm in writing that they brought nothing. Brief the hiring manager too — managers create exposure by asking reasonable-sounding questions about a competitor's pricing or pipeline.

It depends on the specific hire rather than on a general rule. Indemnification can close a strong candidate who is otherwise afraid to move. It also transfers risk you may not have priced, can complicate your own defense, and in some circumstances is read as evidence that the company knew the hire was contested. Scope is everything — defense costs only or judgments too, capped or uncapped, conditioned on the employee's compliance or not. Work it out before the offer letter goes out.

Your company needs its own response strategy rather than relying on the employee's lawyer. Your interests overlap but are not identical: the employee's priority is keeping the job, yours includes limiting corporate exposure. Preserve everything including onboarding records and systems logs, verify what actually arrived on your systems and be certain of the answer, read the specific provision being asserted, and never instruct the employee to delete anything. Many of these resolve into a narrow, time-limited accommodation on named accounts.

Ready to Talk?

Considering a Restricted Candidate?

Review the agreement before the start date. An afternoon of diligence before the offer is worth more than any response you can mount after a letter arrives.

Call 414-877-0690 Talk to a Wisconsin Noncompete Attorney →

Barton Cerjak S.C. · 313 N. Plankinton Ave., Suite 207, Milwaukee, WI 53203 · Confidential consultations

This page is general information about Wisconsin law, not legal advice, and reading it does not create an attorney-client relationship. Noncompete disputes turn on the exact wording of your agreement and on what actually happened — talk to a lawyer about your own situation before you act.