Restrictive covenants in professional employment contracts

Department of Radiology, University of South Alabama, Mobile 36617.

For a court to sustain a restrictive covenant with anticompetition as its major thrust does violence to our individual rights. There is no duty for a former employee not to compete as an incident of employment. Employers who seek to enforce restrictive covenants to protect their practice areas are asking the court to place on one side of the scales of justice the birthright of a newcomer to engage in the competitive marketplace and to place on the other side the right of the established group to have a public market area reserved exclusively for their benefit by prior claim. The court is being asked to take valuable legal rights to pursue competitive opportunities from one person or business and give them to the other person or business. In a legal sense, this is not easy to justify. Without something specific and private to protect other than public competitive opportunities, a restrictive covenant may violate public policy by casting a chilling effect on competition, may be abusive to constitutional equal protection, does violence to the concept of free enterprise, and tends to deny communities the services of highly trained professionals that may otherwise be hard to replace. The law of restrictive covenants varies from one state to another. Some jurisdictions have strayed from the traditional position detailed here and often are inclined to protect the employer's right to a service area for a specified term. The services of a local attorney should be obtained when it is necessary to deal with a contractual restrictive covenant.
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