Generally, not-to-compete convenants are enforceable in Wisconsin if they are reasonable in time and scope. Unlike most states where the courts will strike out unreasonable portions of the non-compete restrictions and enforce the rest, in Wisconsin, unless all elements of a non-compete clause are fully enforceable, the entire agreement will be stricken.
Whether restrictions are reasonable depends on the facts of each case, although a review of recent Wisconsin court decisions provide at least some general guidelines:
- Any restriction seeking to prevent competition for more than two years would be unreasonable.
Shorter periods will generally be enforceable.
- The restriction cannot prevent the individual from earning a living. Thus a general restriction against practicing dentistry for two years would be invalid.
- The restriction cannot be more than what is necessary to protect the employer.
For example, if you work in a dental practice located in Milwaukee, a prohibition against practicing anywhere in Wisconsin would be unenforceable.
A prohibition against practice in Milwaukee County would most likely be enforceable, while enforceability of a prohibition applicable to Milwaukee, Waukesha and Ozaukee counties would most likely depend on where the practice’s patients are located.
A prohibition against you contacting the practice’s patients or those patients you treated while in that practice after leaving would almost certainly be enforceable.
Enforcement of other restrictions would depend on what they are, the nature of the particular practice, the location of the practice and its patients and any other relevant factors.
Non-compete provisions are frequently included in employment contracts, although they can also be separate, stand-alone agreements.
If the non-compete provisions are in a separate agreement not entered into at the time of the initial hire, there must be consideration for the agreement (i.e., both parties must get something).
For example, the employer gets the protection of the non-compete, the employee must get a payment, a pay increase, a contract extension or something. Wisconsin courts have held that simply not getting fired is not adequate consideration since you had the job already.