Covenant Not to Compete Definition & Colorado Non Compete Agreement Law

Non compete agreement clause definition, restrictive covenants, or a covenant not to compete in Colorado is a contract by the restricted party (e.g. an employee) not to engage in business activity that is in competition with the other, protected party (e.g. an employer).  The Colorado Non compete Statute can be mere restrictive covenants provision within a contract or a full-length agreement (non-compete agreement) in and of itself.

A Colorado non compete agreement is put in place to protect a business from its own staff becoming business competitors.  However, both the interests of the protected party (e.g. employer) and that of the prohibited party (e.g. employee) must be weighed.  Frequently, covenants not to compete are entered upon termination of an employment or business relationship, but it can also be a pre-condition to such a relationship.  

Enforceable Non Compete Agreement Versus Unenforceable Covenant Not to Compete

Typically, the general standard for evaluating a covenant not to compete or non compete clauses in Colorado is reasonableness.  Every case has a unique set of facts and should be analyzed accordingly. In Colorado, the central issue is the language in the agreement. Is clear and indisputable? Is the language reasonable? These all things that a court of law looks at when it comes to non compete agreements in Colorado.

However, in some states, a non-compete agreement is strongly against public policy and unenforceable.  For example, in California, non compete agreements are not enforceable against employees but maybe enforceable against stakeholders in a business. 

Are non compete clauses enforceable in Colorado?

 In Colorado laws for contract competition and Colorado Non Compete Statute,  restrictive covenants not to compete ( non compete clauses ) are prohibited unless the covenant relates to one of four categories:

(1) The sale or purchase of a business;

(2) The protection of trade secrets;

(3) The recovery of training expenses of an employee employed for less than two years; or

(4) Executive or management employees or their professional staff.  Notably, independent contractors do not fall within any of these exceptions. 

Specifics of  Non Compete Agreement Colorado Clauses

So, the question about the competition definition is how long should restrictive covenant clauses (Non Compete Clause Colorado) last and how far in geographic scope should it be under Colorado non compete law? 

The duration of a covenant not to compete agreement and its enforceability is dependent upon the nature of the business. What is too lengthy of a restriction in one field may be too short in another industry to offer adequate protection. Similarly, the geographic spans of a non-compete clause are dependent upon the geographic scope of the protected party’s business.

For example, if a protected party exclusively does business in several cities within a particular state, it’s reasonable to presume that precluding competition by the employee out of state is an unreasonable limitation.  See also information about non-disclosure agreements. Also get information for government contractors that have employee confidentiality agreements.

Sample Court Outcomes Under Colorado Non Compete Law

The following provides several examples of restrictive  non compete clause Colorado CO courts have upheld as reasonable under Colorado Non compete statute and Colorado law:

• Five-year, one county restriction on ophthalmologist was reasonable and enforceable in Colorado
• Five-year, one county covenant with the hospital was enforceable against the doctor since he sold his business and was a member of the professional staff, thus qualifying under two of the exceptions to the statute
• One year non compete provision restricting headhunters from contacting potential candidates was enforceable under trade secret exception to the non compete agreement Colorado statute
• Three-year, twenty-mile covenant enforced against the husband in divorce proceeding requiring the transfer of photographic developing business to wife, falling into the sale of the business and the executive management staff exceptions to the statute.

See Gibson v. Angros, 491 P.2d 87 (Colo. App. 1971); Boulder Medical Center v. Moore, 651 P.2d 464 (Colo. App. 1982); Management Recruiters of Boulder v. Miller, 762 P.2d 763, 764-766 (Colo. App. 1988); In re Marriage of Fischer, 834 P.2d 270 (Colo. App. 1992).

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