May 9, 2021

Volume XI, Number 129

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Learning the Hard Way: Non-Competes and Subsequent Agreements

The Georgia Court of Appeals handed down a tough lesson for an employer in Mapei Corporation v. Prosser, A14A0368 (Ga. Ct. App. July 9, 2014).  The Court of Appeals affirmed summary judgment for an employee on the claim he breached his non-compete with his prior employer.  The Court found a subsequent confidentiality agreement signed by the former employee omitted the non-compete covenant that the prior confidentiality agreement contained.  The Court found the subsequent agreement replaced the earlier-entered agreement containing the non-compete covenant because the subsequent confidentiality agreement covered the same subject matter and contained a superseding-agreement clause stating the agreement “totally replaces all prior contract agreements or understandings… about confidential information or any other subject matter contained herein.”

The take away for employers is to always be careful when having employees sign multiple agreements.  If an agreement contains a superseding-agreement clause, or even if it similar in subject matter to a prior agreement, it is important to determine if there are any prior agreements or covenants within other agreements between the employee and employer that the employer would want to preserve.  If so, new agreements can be drafted to maintain or preserve obligations under prior agreements.

While this decision was based on Georgia law, it was decided with the guidance of basic contract principles that many other states follow.  Therefore, employers nationwide should remember this lesson to avoid making the same mistake.

This article was written with contributions from Erin J. Krinsky. 

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Jackson Lewis P.C. © 2021National Law Review, Volume IV, Number 246
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About this Author

Todd Van Dyke, Employment Attorney, Sexual Harassment, discrimination, Jackson Lewis Law FIrm
Office Managing Principal

Todd Van Dyke is the Office Managing Principal of the Atlanta, Georgia, office of Jackson Lewis P.C. He litigates all types of employment law claims, including claims alleging sexual harassment, sex discrimination, disability discrimination, age discrimination, race, color, and national origin discrimination, retaliation, wrongful discharge, breach of contract, and state tort issues in federal and state courts and in arbitration.

His practice includes single plaintiff, multi-plaintiff, class and collective action cases and EEOC pattern and practice cases. Mr....

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