Below is a jurisdiction-sensitive, engineering-tailored non-compete and non-solicitation covenant drafted for a back-end engineer. Because enforceability varies substantially by jurisdiction, the clause is written with modular options and savings provisions. Please insert the governing law and fill the bracketed variables to conform to your facts and chosen forum.
Employee Non-Competition and Non-Solicitation Covenant (Back-End Engineer)
1. Definitions
1.1 “Company” means [Company Name], together with its subsidiaries and affiliates.
1.2 “Restricted Period” means the period during Employee’s employment and for [6/9/12] months thereafter; provided that, to the extent any post-employment non-compete is unlawful in a given jurisdiction, the “Restricted Period” shall apply only to the non-solicitation and confidentiality covenants that are permitted by law.
1.3 “Restricted Business” means the specific products, product lines, or services of the Company with which Employee worked, about which Employee received Confidential Information, or for which Employee had material responsibilities at any time during the 12 months preceding separation (e.g., server-side software, APIs, microservices, distributed systems, data infrastructure, cloud platform components, databases, message queues, workload orchestration, SRE/DevOps tooling) and any successor or derivative offerings thereof.
1.4 “Competing Business” means any person or entity that provides products or services that are the same as or materially similar to, or that are intended to substitute for, the Restricted Business.
1.5 “Restricted Territory” means any geographic area, market, or customer segment in which, during the 12 months preceding separation, (a) the Company marketed, sold, or provided the Restricted Business and (b) Employee had material duties or material business contacts; provided that, in jurisdictions disfavoring broad geographic restraints, “Restricted Territory” shall be limited to customers and prospective customers with whom Employee had Material Contact.
1.6 “Material Contact” means contact or responsibility sufficient to establish goodwill or access to competitively sensitive information, including direct communications, substantive participation in sales, support, engineering roadmap, incident response, or architecture decisions for a customer or prospect.
1.7 “Restricted Activities” means, with respect to the Restricted Business: (a) designing, coding, testing, or deploying server-side or platform code; (b) architecting or operating distributed systems, databases, data pipelines, or APIs; (c) site reliability engineering, infrastructure-as-code, CI/CD, observability, or performance optimization; (d) security engineering, identity/authentication, access controls, or data protection; (e) technical product management directly defining back-end requirements; or (f) supervising, directing, or advising others engaged in any of the foregoing.
2. Non-Competition
During the Restricted Period, Employee shall not, in the Restricted Territory, directly or indirectly (including as an employee, contractor, consultant, founder, officer, director, or significant investor), engage in any of the Restricted Activities for a Competing Business with respect to the Restricted Business. This covenant is limited to the scope of work and product lines on which Employee worked or about which Employee received Confidential Information, and does not bar Employee from general software engineering work unrelated to the Restricted Business.
3. Permitted Activities
Nothing in this Section prohibits Employee from: (a) passive investment of up to 2% of the outstanding securities of a publicly traded company; (b) using general skills, knowledge, or experience (including programming languages, frameworks, architectural patterns, or general engineering practices) that do not use or disclose the Company’s Confidential Information; (c) bona fide academic, research, teaching, or open-source contributions not directed to or used by a Competing Business in the Restricted Business; or (d) employment with a diversified enterprise provided Employee does not perform the Restricted Activities for any unit that is a Competing Business with respect to the Restricted Business.
4. Customer Non-Solicitation and Non-Interference
For [12] months following separation, Employee shall not, directly or indirectly, for the purpose of providing products or services competitive with the Restricted Business: (a) solicit, divert, or accept business from any customer or client with whom Employee had Material Contact during the 12 months prior to separation; or (b) induce any such customer or client to reduce, terminate, or adversely modify its relationship with the Company. In jurisdictions where a customer non-solicit must be limited to those with whom the employee had Material Contact, this Section is so limited.
5. Employee/Contractor Non-Solicitation
For [12] months following separation, Employee shall not, directly or indirectly, solicit for employment or engagement, recruit, or induce to leave the Company any individual who is, or within the 6 months prior to the solicitation was, an employee or contractor of the Company, where doing so would use or disclose Confidential Information or would result in the loss of a uniquely qualified or key employee or contractor. If a broader employee non-solicit is unenforceable in a given jurisdiction (e.g., California), this Section shall be construed to the maximum extent permitted by law, and otherwise limited to protecting trade secrets and confidential information.
6. Confidential Information
Employee’s obligations under any confidentiality, inventions assignment, or similar agreement with the Company remain in full force. Nothing herein authorizes or requires disclosure or use of any Confidential Information or trade secrets. Nothing herein prohibits lawful whistleblowing, filing a charge, or cooperating with a government agency, or other conduct protected by applicable law.
7. Consideration; Garden Leave; Jurisdictional Compliance
7.1 Initial Consideration. The parties acknowledge that the consideration for this covenant includes employment (or continued employment), compensation and benefits, access to Confidential Information and trade secrets, training, and eligibility for incentive compensation.
7.2 Garden Leave / Non-Compete Pay (if required). Where applicable law requires post-employment compensation to enforce a non-compete, the Company shall pay Employee during the post-employment portion of the Restricted Period an amount not less than the jurisdictionally required minimum (e.g., (i) in Massachusetts, M.G.L. c. 149, §24L, at least 50% of Employee’s highest annualized base salary within the 2 years preceding separation or other mutually-agreed consideration; (ii) in Germany, at least 50% of the last total contractual compensation pursuant to HGB §74; (iii) in the PRC, monthly compensation compliant with Labor Contract Law Art. 23–24 and local regulations). Payments (if any) shall cease upon a material breach by Employee or as otherwise permitted by law.
7.3 Notice Requirements. Where law requires advance notice or delivery of a signed copy of this agreement (e.g., Oregon ORS 653.295; Massachusetts §24L; Illinois 820 ILCS 90/20), the Company shall provide the required notice and copies, and this covenant shall be effective only upon compliance with such requirements.
8. Tolling
If Employee breaches the covenants in Sections 2, 4, or 5, the Restricted Period shall be tolled for the duration of such breach, but only to the extent permitted by applicable law.
9. Notice of Subsequent Employment
During the Restricted Period, Employee shall provide the Company, upon request, with the name of any new employer or business and a general description of duties reasonably sufficient to assess compliance, and authorizes the Company to provide a copy of this covenant to such employer. This Section shall not be used to restrain lawful employment beyond what is enforceable under applicable law.
10. Reasonableness; Reformation
Employee acknowledges that the covenants herein are narrowly tailored by activity, product scope, customers, geography, and time to protect the Company’s legitimate interests in trade secrets, confidential information, and customer goodwill, and will not preclude Employee from earning a living. If any provision is overbroad or unlawful in a particular jurisdiction, a court may reform or “blue-pencil” it to the minimum extent necessary to render it enforceable, and it shall be enforced as reformed.
11. Carve-Out Where Prohibited by Law
To the extent post-employment non-compete covenants are void or unlawful for Employee’s residence or primary work location (including, by way of example and not limitation, California, Oklahoma, North Dakota, Minnesota, and certain categories of workers in the District of Columbia and other jurisdictions), Section 2 shall not apply. In such jurisdictions, the remaining covenants (customer non-solicitation to the extent permitted, personnel non-solicitation to the extent permitted, and confidentiality/trade secret protections) shall continue in full force as permitted by law. In California, this Section shall be construed to exclude any post-employment non-compete and employee non-solicit restraints, without limiting the Company’s rights under trade secret and unfair competition laws.
12. Remedies
Employee agrees that any breach may cause irreparable harm for which monetary damages are inadequate. The Company shall be entitled to seek injunctive relief, specific performance, or other equitable remedies, in addition to any other remedies available at law, subject to applicable law governing the availability of such relief. Nothing herein precludes recovery of damages.
13. Governing Law; Forum
Subject to Section 11, this covenant shall be governed by the laws of [Governing Law State/Country], without regard to its conflict-of-laws principles, and any dispute shall be brought in the courts of [Forum], except where applicable labor law requires adjudication elsewhere or prohibits out-of-state choice-of-law/venue for employees primarily residing or working in that jurisdiction.
14. No Employment Guarantee; Assignment
Nothing herein alters the at-will nature (if applicable) of employment. The Company may assign this covenant to a successor in interest in connection with a merger, acquisition, or sale of assets or business lines that include the Restricted Business.
15. Severability; Integration
If any provision is held invalid, the remainder shall remain in force to the extent permitted. This covenant supplements, and does not limit, Employee’s obligations under any confidentiality, inventions, or similar agreements, which remain in effect.
Jurisdictional Drafting Notes and Authorities
- Baseline reasonableness (common law United States). Non-competes must protect legitimate business interests (trade secrets, confidential information, goodwill), be reasonable in time, geography, and scope, and not impose undue hardship or injure the public. See Restatement (Second) of Contracts §188; BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999) (limiting customer non-solicit to clients employee served); Florida Stat. §542.335 (statutory enforcement framework); Texas Bus. & Com. Code §15.50; Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006) (ancillary-to-enforceable-agreement requirement satisfied by provision of confidential information).
- FTC non-compete rule (United States, federal). On April 23, 2024, the FTC issued a final rule broadly banning most employment non-competes; on August 20, 2024, the Northern District of Texas vacated the rule nationwide in Ryan, LLC v. FTC (No. 3:24-cv-00986). As of October 2024, enforcement of employment non-competes remains a matter of state law; monitor appellate developments.
- States that broadly prohibit post-employment non-competes: California Bus. & Prof. Code §16600 et seq.; Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937 (2008) (strict approach; employee non-solicit also at risk, e.g., AMN Healthcare, Inc. v. Aya Healthcare Servs., Inc., 28 Cal. App. 5th 923 (2018)); North Dakota Cent. Code §9-08-06; Oklahoma 15 O.S. §219A; Minnesota Stat. §181.988 (effective 2023, general ban with carve-outs for sale-of-business).
- States imposing salary/role thresholds or formalities:
- Colorado C.R.S. §8-2-113 (only for “highly compensated” workers and to protect trade secrets; notice required).
- Washington RCW 49.62 (earnings thresholds; moonlighting protections; forum limits; penalties).
- Illinois Freedom to Work Act, 820 ILCS 90 (income thresholds; 14-day review period; consideration requirements).
- Massachusetts M.G.L. c. 149, §24L (garden leave or other fair consideration; 12-month cap; not enforceable against non-exempt employees; advance notice).
- Oregon ORS 653.295 (advance notice before start; capped at 12 months; salary and exempt-status requirements; employer must deliver signed copy post-termination).
- Virginia Code §40.1-28.7:8 (ban for “low-wage” employees).
- D.C. Code §32-581.01 et seq. (ban for non-highly compensated employees; exceptions).
- Maryland, Nevada, Rhode Island and others restrict non-competes for lower-wage workers; check current thresholds.
- Choice of law and forum constraints. Some states limit out-of-state choice of law/forum for residents (e.g., Cal. Lab. Code §925; RCW 49.62.050).
- European Union/United Kingdom:
- Germany: Post-contractual non-competes require compensation of at least 50% of the last contractual remuneration; must be in writing and limited to 2 years. Handelsgesetzbuch (HGB) §§74–75d.
- France: Enforceability requires proportionality and financial compensation (often 30–50% of compensation) defined by contract or CBA; must be limited in scope and geography; 12–24 months typical (case law-driven).
- United Kingdom: Enforced if reasonable to protect legitimate interests; severance permitted. See Tillman v. Egon Zehnder Ltd [2019] UKSC 32. Government has signaled potential statutory 3‑month cap but, as of October 2024, no cap is in force; monitor developments.
- Asia-Pacific:
- PRC: Labor Contract Law Art. 23–24 permits non-competes for senior management, senior technical staff, and others with confidentiality obligations; employer must pay monthly compensation; maximum 2 years; scope must be reasonable; local regulations apply.
- India: Post-employment non-competes are generally void under §27 of the Indian Contract Act, 1872. See Superintendence Co. v. Krishan Murgai (1980) and Percept D’Mark (India) Pvt. Ltd. v. Zaheer Khan (2006). Use confidentiality, IP, and customer non-solicit (the latter with care) instead.
- Singapore: Enforceable if reasonable and necessary to protect legitimate interests; narrower drafting improves enforceability. See Man Financial (S) Pte Ltd v. Wong Bark Chuan David [2008] SGCA 27.
Drafting Recommendations for a Back-End Engineer
- Keep the restraint tied to actual product lines and responsibilities (Restricted Business) and to engineering functions that create competitive risk (Restricted Activities).
- Prefer customer-based or product-line limitations over broad geographies for remote/online products.
- Use a 6–12 month duration for post-employment non-competes; pair with garden leave where required or advisable.
- Build a compliant fallback: where non-competes are void, rely on confidentiality, trade secret law, and a narrowly tailored customer non-solicit (if permitted).
- Include formalities: advance notice, delivery of signed copy at termination, and statutory pay/threshold compliance where required.
Please provide the intended governing law, the employee’s primary work location, compensation level, and whether the employee is exempt/non-exempt, so this can be finalized to your specific jurisdictional requirements.
