Legal items in Colorado

Non-compete agreements are used to attempt to restrict a company’s employees and independent contractors from engaging in competitive activities with that company. Non-solicitation agreements are a form of non-compete agreement which are specifically tailored to attempting to restrict a former employee or independent contractor of the company from soliciting and/or otherwise engaging in business with a company’s current or prospective customers. Many people our Denver employment lawyers encounter wonder “Is a non-compete enforceable in Colorado?”

Are non-solicitation agreements enforceable in Colorado? Read this Colorado contract law blog to learn more.

In Colorado, non-compete and non-solicitation agreements entered into after August 9, 2022 are more difficult to enforce than those entered into before that date. For non-compete agreements entered into after August 9, 2022, unless the non-compete agreement concerns the sale of a business, a physician, or the recoupment of expenses incurred in educating and/or training a worker: (a) only highly compensated persons making (as of 2022, at least $101,250 a year and as of 2023, at least $112,500 a year) can be asked to sign a non-compete agreement; and (b) only persons compensated (in 2022, at least $60,750 a year and in 2023, at least $67,500 a year) can be asked to sign a non-solicitation agreement. If a person earns less than the above limits, and the non-compete and/or non-solicitation agreement in question does not concern the sale of a business, a physician or the recoupment of expenses incurred in educating and/or training a worker, it is illegal for an employer to require a worker who primarily works or resides in Colorado to sign such an agreement. Note that the above dollar limits are subject to change each year depending on the Colorado Department of Labor’s calculation as to what constitutes a highly compensated worker. Further note that equity or in-kind benefits cannot be used to satisfy the above compensation threshold requirements.

Even if a person earns more than the above limits, new changes to Colorado law only allow non-compete and non-solicitation agreements to protect trade secrets, and to be no broader than is reasonably necessary to protect the employer’s legitimate interests in protecting their trade secrets. In this regard, restrictions are expected to continue to be applied by Colorado Courts requiring that such non-compete and non-solicitation agreements be reasonable in geographic reach, duration, and scope. For agreements entered into after August 9, 2022, companies will no longer be allowed to justify the enforcement of a non-compete or non-solicitation agreement based solely on the fact that an employee may be an executive or in management or professional staff thereto.

If retained by you, Hansen Law Firm can help you to understand how Colorado courts are likely to determine whether you have had access to trade secrets and whether the Colorado non-compete and/or non-solicitation agreement in question is likely to be considered broader than reasonably necessary to protect the employer’s legitimate interests in protecting their trade secrets.

Strict Notice Requirements Now Apply in Colorado

Under Colorado contract law, strict notice requirements apply to non-compete and non-solicitation agreements entered into after August 9, 2022. Simply handing the non-compete or non-solicitation agreement to the employee or prospective employee is not enough. A separate written document providing certain particularized notice as to what the worker or prospective worker is being asked to sign must be provided and signed by the employee or prospective employee. If the strict notice requirements are not followed, non-compete and non-solicitation agreements entered into after August 9, 2022 are void under Colorado non compete law. As for current workers, such workers must be given at least 14 days advance written notice of: (a) the request by the employer to sign a non-compete or non-solicitation agreement; and/or (b) the provision by the employer of additional consideration or any other change in employment conditions that provides consideration for the non-compete or non-solicitation agreement. As for prospective workers, gone are the days of an employer hiring a worker and then springing a Colorado non-compete agreement on the worker right after they have moved their life around to take the job. Prospective workers must be provided with the proposed non-compete or non-solicitation agreement, and the required related notice, before the worker accepts the offer of employment.

If you are provided a written notice and a proposed non-compete agreement and/or non-solicitation agreement to review, if retained by you, the Colorado contract lawyer at Hansen Law Firm can help you evaluate, understand, and potentially negotiate the proposed non-compete agreement and/or non-solicitation agreement before you sign it. If you are not provided the required written notice, if retained by you, Hansen Law Firm can help you to navigate how to address the situation and the best legal strategy for you with our contract law services in Colorado.

Confidentiality Agreements, Nondisclosure Agreements and Non-Solicitation of Employee Provisions Are Still Allowed in Colorado

When reviewing any agreement with your employer or prospective employer, keep in mind that, even under the new Colorado law, companies are still allowed to enforce a reasonable confidentiality and/or nondisclosure provision relevant to the employer’s business as long as the provision does not: (a) prohibit disclosure of information that arises from the worker’s general training, knowledge, skill, or experience, whether gained on the job or otherwise; (b) information that is readily ascertainable to the public; or (c) information that the worker otherwise has the right to disclose as legally protected conduct. You should also keep in mind that Colorado continues to put no limitations on the ability of an employer to prohibit you from soliciting its employees.

Physicians are Still Treated Differently than All Other Workers in Colorado

Colorado has long treated physicians differently than every other worker in the state when it comes to the enforcement of non-compete and non-solicitation agreements. Presumably based on the notion that a physician has spent too much time and money to obtain their medical license to restrict where they practice, to protect patient choice, and/or to protect the ability of physicians to stay in Colorado to service its population, non-compete and non-solicitation agreements are not allowed to be used to restrict a physician from competing for and/or soliciting patients. Under the new Colorado law, it remains the case that the only remedy available with respect to a physician who violates a non-compete or a non-solicitation agreement is the award to damages against the physician for breaching the agreement, with certain exceptions for the treatment of patients with rare disorders.

Employers May No Longer Require Another State’s Law to Apply or Force You to Defend Yourself in Another State

Under the new Colorado law, if you are employed or work primarily in Colorado at the time of your termination of employment, an employer may no longer, with regard to Colorado non-compete and non-solicitation agreements entered into after August 9, 2022, require you to litigate the enforceability of a non-compete or non-solicitation agreement outside of Colorado or require that some other state’s law be applied to determine the enforceability of the non-compete or non-solicitation agreement. Colorado law provides that notwithstanding any contractual provision to the contrary, Colorado law shall be applied by a Colorado court to rule on any such questions regarding non-compete and non-solicitation agreements entered into after August 9, 2022. Importantly, other state courts may not respect Colorado law in such regard and may still attempt to adjudicate the dispute and apply their own law. To try to prevent such an outcome, a worker who is a party to a non-compete or non-solicitation agreement, may seek a declaratory judgment from a Colorado court of competent jurisdiction, or an arbitrator if an arbitration clause applies, to ask that it be declared that the non-compete or non-solicitation agreement is unenforceable under Colorado law. A Colorado worker or resident at the time of termination of employment, who is subject to a non-compete or non-solicitation agreement entered into on or after August 9, 2022, which agreement picks another state’s law to apply and/or another state’s court to resolve any dispute involving the agreement, may wish to retain Hansen Law Firm, to attempt to win the race to the courthouse by filing a declaratory judgment action in Colorado before the employer runs to the courthouse of their selected state to enforce the agreement against you.

Potential Monetary Penalties and the Award of Attorneys’ Fees May be Available to You Against Your Employer or Potential Employer in Colorado

The new Colorado law provides for the first time for potential monetary penalties and attorneys’ fees to be awarded if an employer, after August 9, 2022, enters into, presents to a worker or prospective worker, or attempts to enforce, any Colorado non-compete agreement and/or non-solicitation agreement that is void under Colorado law. For each unenforceable agreement, the employer may be held liable for actual damages, plus a $5,000 penalty per worker or prospective worker “harmed by the conduct.” If retained by you, Hansen Law Firm can help you evaluate whether you may be entitled to the award of damages, penalties, an injunction to prohibit the behavior, and attorneys’ fees related to an employer’s or prospective employer’s actions in such regard.

What if my Colorado Non-Compete was entered into before August 9, 2022?

For Colorado non-compete and non-solicitation agreements entered into before August 9, 2022, the new Colorado law will not apply. Instead, you will need to rely on the terms of Colorado Revised Statute Section 8-2-113 as it existed before the change in the law became effective. To better understand the ins and outs of C.R.S. § 8-2-113 before it was amended, please refer to my prior blog entry which can be found at the following link:

Did not the Federal Government, thru the Federal Trade Commission (FTC), outlaw all non-competes in the US?

The Federal Government thru the Federal Trade Commission (“FTC”) has circulated a proposal to require employers on a nationwide basis to withdraw existing non-compete agreements and inform workers that they no longer apply. The proposal would also make it illegal for an employer on a nationwide basis to enter into a non-compete with a worker or to try to do so, or to suggest that a worker is bound by a non-compete when he or she is not. However, the proposal at this point is only a proposal and has not yet, as of the date of this blog, been made a rule. Moreover, even if the proposal is made into a rule, its legality is likely to be tested in Court. The FTC will likely face legal challenges, including, but not limited to, from the United States Chamber of Commerce, that a nationwide ban on non-competes is outside the rulemaking authority which Congress granted to the FTC. Given the nation’s conservative leaning Supreme Court, it is not at all clear that any such nationwide proposal by the FTC, even if it becomes a rule, will be determined to be enforceable.

Call Hansen Law Firm for More Information About Colorado Non Compete Law

If you have been asked to sign a Colorado non-compete agreement or non-solicitation agreement, Hansen Law Firm can help you to understand whether you may rightfully be subject to such an agreement and, if so, potentially negotiate an agreement that better protects you and your long-term interests. If you have already signed a Colorado non-compete agreement or non-solicitation agreement, Hansen Law Firm can help you to better understand your rights and responsibilities under the agreement. Our Denver business lawyers serving Colorado are knowledgeable on all things related to non-compete agreements and their legality and enforceability within the State of Colorado. To schedule a free consultation, please call 303-785-7777.

Legal items in Colorado

Non-compete agreements are used to attempt to restrict a company’s employees and independent contractors from engaging in competitive activities with that company. Non-solicitation agreements are a form of non-compete agreement which are specifically tailored to attempting to restrict a former employee or independent contractor of the company from soliciting and/or otherwise engaging in business with a company’s current or prospective customers.  Many people wonder “Is a non-compete enforceable in Colorado?”  Are non-solicitation agreements enforceable? Read this contract law blog to learn more. 

In Colorado, it will be more difficult to enforce non-compete and non-solicitation agreements entered into after August 9, 2022.  It will still be possible for a Company to possibly enforce such agreements when they involve a sale of a business, a physician, or the recoupment of expenses incurred in educating and/or training a worker (provided the training is distinct from normal, on the job training).  However, as to non-compete agreements entered into after August 9, 2022, unless the non-compete agreement concerns the sale of a business, a physician, or the recoupment of expenses incurred in educating and/or training a worker: (a) only highly compensated persons making as of 2022 at least $101,250 a year can be asked to sign a non-compete agreement; and (b) only persons compensated in 2022 at least $60,750 a year can be asked to sign a non-solicitation agreement.  If a person earns less than the above limits, and the non-compete and/or non-solicitation agreement in question does not concern the sale of a business, a physician or the recoupment of expenses incurred in educating and/or training a worker, it is illegal for an employer to require a worker who primarily works or resides in Colorado to sign such an agreement.  Note that the above dollar limits are subject to change each year depending on the Colorado Department of Labor’s calculation as to what constitutes a highly compensated worker.  Further note that equity or in-kind benefits cannot be used to satisfy the above compensation threshold requirements.  

In addition, even if a person earns more than the above limits, new changes to Colorado law only allow non-compete and non-solicitation agreements to protect trade secrets, and to be no broader than is reasonably necessary to protect the employer’s legitimate interests in protecting their trade secrets.  In this regard, restrictions are expected to continue to be applied by Colorado Courts requiring that such non-compete and non-solicitation agreements be reasonable  in geographic reach, duration, and scope.  For agreements entered into after August 9, 2022, companies will no longer be allowed to justify the enforcement of a non-compete or non-solicitation agreement based solely on the fact that an employee may be an executive or in management or professional staff thereto. If retained by you, Hansen Law Firm can help you to understand how Colorado courts are likely to determine whether you have had access to trade secrets and whether the non-compete and/or non-solicitation agreement in question is likely to be considered broader than reasonably necessary to protect the employer’s legitimate interests in protecting their trade secrets.   

Strict Notice Requirements Now Apply

Under Colorado law, strict notice requirements apply to non-compete and non-solicitation agreements entered into after August 9, 2022.  Simply handing the non-compete or non-solicitation agreement to the employee or prospective employee is not enough.  A separate written document providing certain particularized notice as to what the worker or prospective worker is being asked to sign must be provided and signed by the employee or prospective employee.  If the strict notice requirements are not followed, non-compete and non-solicitation agreements entered into after August 9, 2022 are void under Colorado law.  As for current workers, such workers must be given at least 14 days advance written notice of: (a) the request by the employer to sign a non-compete or non-solicitation agreement; and/or (b) the provision by the employer of additional consideration or any other change in employment conditions that provides consideration for the non-compete or non-solicitation agreement.  As for prospective workers, gone are the days of an employer hiring a worker and then springing a non-compete agreement on the worker right after they have moved their life around to take the job.  Prospective workers must be provided with the proposed non-compete or non-solicitation agreement, and the required related notice, before the worker accepts the offer of employment.  

If you are provided a written notice and a proposed non-compete agreement and/or non-solicitation agreement to review, if retained by you, the Colorado contract lawyer at Hansen Law Firm can help you evaluate, understand, and potentially negotiate the proposed non-compete agreement and/or non-solicitation agreement before you sign it.  If you are not provided the required written notice, if retained by you, Hansen Law Firm can help you to navigate how to address the situation and the best legal strategy for you with our contract law services in Colorado.  

Confidentiality Agreements, Nondisclosure Agreements and Non-Solicitation of Employee Provisions Are Still Allowed

When reviewing any agreement with your employer or prospective employer, keep in mind that, even under the new Colorado law, companies are still allowed to enforce a reasonable confidentiality and/or nondisclosure provision relevant to the employer’s business as long as the provision does not: (a) prohibit disclosure of information that arises from the worker’s general training, knowledge, skill, or experience, whether gained on the job or otherwise; (b) information that is readily ascertainable to the public; or (c) information that the worker otherwise has the right to disclose as legally protected conduct. You should also keep in mind that Colorado continues to put no limitations on the ability of an employer to prohibit you from soliciting its employees.  

Physicians are Still Treated Differently than All Other Workers

Colorado has long treated physicians differently than every other worker in the state when it comes to the enforcement of non-compete and non-solicitation agreements.  Presumably based on the notion that a physician has spent too much time and money to obtain their medical license to restrict where they practice, to protect patient choice, and/or to protect the ability of physicians to stay in Colorado to service its population, non-compete and non-solicitation agreements are not allowed to be used to restrict a physician from competing for and/or soliciting patients.  Under the new Colorado law, it remains the case that the only remedy available with respect to a physician who violates a non-compete or a non-solicitation agreement is the award to damages against the physician for breaching the agreement, with certain exceptions for the treatment of patients with rare disorders.  

Employers May No Longer Require Another State’s Law to Apply or Force You to Defend Yourself in Another State

Under the new Colorado law, if you are employed or work primarily in Colorado at the time of your termination of employment, an employer may no longer, with regard to non-compete and non-solicitation agreements entered into after August 9, 2022, require you to litigate the enforceability of a non-compete or non-solicitation agreement outside of Colorado or require that some other state’s law be applied to determine the enforceability of the non-compete or non-solicitation agreement.  Colorado law provides that notwithstanding any contractual provision to the contrary, Colorado law shall be applied by a Colorado court to rule on any such questions regarding non-compete and non-solicitation agreements entered into after August 9, 2022.  Importantly, other state courts may not respect Colorado law in such regard and may still attempt to adjudicate the dispute and apply their own law.  To try to prevent such an outcome, a worker who is a party to a non-compete or non-solicitation agreement, may seek a declaratory judgment from a Colorado court of competent jurisdiction, or an arbitrator if an arbitration clause applies, to ask that it be declared that the non-compete or non-solicitation agreement is unenforceable under Colorado law.  A Colorado worker or resident at the time of termination of employment, who is subject to a non-compete or non-solicitation agreement entered into on or after August 9, 2022, which agreement picks another state’s law to apply and/or another state’s court to resolve any dispute involving the agreement, may wish to retain Hansen Law Firm, to attempt to win the race to the courthouse by filing a declaratory judgment action in Colorado before the employer runs to the courthouse of their selected state to enforce the agreement against you.  

Potential Monetary Penalties and the Award of Attorneys’ Fees May be Available to You Against Your Employer or Potential Employer

The new Colorado law provides for the first time for potential monetary penalties and attorneys’ fees to be awarded if an employer, after August 9, 2022, enters into, presents to a worker or prospective worker, or attempts to enforce any non-compete agreement and/or non-solicitation agreement entered into after August 9, 2022 that is void under Colorado law.  For each unenforceable agreement, the employer may be held liable for actual damages, plus a $5,000 penalty per worker or prospective worker “harmed by the conduct.”  If retained by you, Hansen Law Firm can help you evaluate whether you may be entitled to the award of damages, penalties, an injunction to prohibit the behavior, and attorneys’ fees related to an employer’s or prospective employer’s actions in such regard.  

Call Hansen Law Firm for More Information About Non Compete Law in Colorado

If you have been asked to sign a non-compete agreement or non-solicitation agreement, Hansen Law Firm can help you to understand whether you may rightfully be subject to such an agreement and, if so, potentially negotiate an agreement that better protects you and your long-term interests.  If you have already signed a non-compete agreement or non-solicitation agreement, Hansen Law Firm can help you to better understand your rights and responsibilities under the agreement.  Our business lawyers are knowledgeable on all things related to non-compete agreements and their legality and enforceability within the State of Colorado. To schedule a free consultation, please call 303-785-7777.

Without at the same time giving you a Promotion, Raise, or Bonus as an Incentive for Doing so?

can your employer make you sign a non compete contract

With respect to the enforceability of non-compete agreements (also called non solicitation agreements) , the question is often asked whether an employer can demand that an existing employee sign a non-competes in Colorado without at the same time offering the existing employee a promotion, raise, or bonus.

We are experts on all things related to non-compete agreements in Colorado and their legality and enforceability. To schedule a free consultation please call Hansen Law Firm and speak with the best contract lawyers in Denver.

Are Non Competes Enforceable?

In other words, is a non-compete agreement enforceable in Colorado which is not supported by consideration being provided by the employer to the employee in exchange for the employee’s execution of the non-compete agreement? Unfortunately, the answer to the question is a resounding “yes.”

Colorado courts have determined that an employer’s mere decision to decide not to fire you (or stated another way, an employer’s mere decision to continue to employ you when the employer could otherwise have decided to fire you) is adequate consideration to support the enforceability of a non-compete agreement required to be signed after the employee began working for the employer.

Thus, if you are an at-will employee in Colorado, you can legitimately be terminated by an employer, all other things being equal, for the simple refusal to sign a non-compete agreement.

Restricting Enforceability of Non Compete Agreements in Colorado

The best way to restrict the enforceability of a non-compete agreement is to seek qualified  breach of contract lawyers, to assist you in attempting to narrow the scope of the agreement before it is signed. Unfortunately, many employees and independent contractors simply sign such agreements without first considering how harmful such non-compete agreements can be to their long-term career goals or to their ability to start their own business someday. If you plan to start a business, make sure to get a qualified business lawyer in Denver.

Spending money up front hiring legal counsel to assist in the negotiation of a non-compete agreement before it is signed, is money well spent if you consider the impact that a broad non-compete agreement in Colorado may have on your career, including your ability to demand a raise and/or to switch employers. After all, think about how much leverage you have given up in demanding a raise and/or promotion from your current employer if your current employer knows that the non-compete agreement you signed with that employer will prevent you from being able to find new employment in your chosen career and/or in your chosen geographic location.

Call Hansen Law Firm for More Information About Non Compete Law in Colorado

If you have been asked to sign a non-compete agreement in Colorado, Hansen Law Firm can help you to potentially negotiate an agreement that better protects you and your long-term interests. If you have already signed a non-compete agreement, Hansen Law Firm can help you to better understand your rights and responsibilities under the agreement. Call to schedule a free consultation with reliable Denver contract lawyers.

Colorado non-compete agreements are used to attempt to restrict a company’s employees, independent contractors, customers and vendors from engaging in competitive activities with that company. Many people wonder “Are non compete agreements enforceable?” For example, an employee with in-depth knowledge of a particular business or industry may be restricted from sharing their knowledge with competitors. Let’s examine at Colorado non-compete law to discern some answers.

Colorado Non-Compete Law

In the State of Colorado, non-compete agreements generally are not allowed, unless they fall under one of the following four exceptions:

  • They are used to protect trade secrets
  • They are used to protect the purchaser in connection with the sale of a business and/or its assets
  • They are used to recover the expense of education or training an employee of less than two-year duration
  • They are used to restrict executive and management personnel or professional staff to those personnel

Non-compete agreements that do not fall under one of these exceptions generally cannot be enforced in Colorado.

A colorado non compete law expert with the text "read the fine print" superimposed on top.

Unfortunately, the statutes and case law governing non-compete agreements in Colorado are vague at best.  C.R.S. Section 8-2-113, boldly states that it is unlawful to use threats, force or any other means of intimidation to prevent a person from engaging in any lawful occupation.   It also states that “any covenant not to compete which restricts the right of any personal to receive compensation for performance of skilled or unskilled labor for any employer shall be void.”

However, Colorado’s bold pronouncement within C.R.S. Section 8-2-113 against the enforce-ability of non-compete contract is misleading.  The pronouncement is of absolutely no effect if it can be successfully argued that the non-compete agreement in question falls into one or more of the four exceptions noted above.

Simply put, while C.R.S. Section 8-2-113 touches on the issue of non-compete agreements and their legality in Colorado, it does not, unfortunately, provide sufficient detail and explanation to guide those who may be subject to such agreements.  For example, the law leaves it up to the courts to determine who qualifies as “executive and management personnel” and what restrictions, if any, are necessary to protect any purported trade secrets.

Reasonable Non Compete Agreements

Even if a business is able to establish that its Colorado non-compete contract is allowed under the law, the business must still prove that the restrictions imposed by the agreement are reasonable.  Among other things, to determine whether the restrictions are reasonable, the court will examine the:

  • Geographic scope of the restriction
  • Duration of the restriction
  • Whether the agreement is overly restrictive

Negotiating Non Competes in Colorado

The best way to restrict the enforce-ability of a non-competition agreement is to seek qualified legal counsel like Hansen Law Firm in helping to narrow the scope of the agreement before it is signed.  Unfortunately, many employees and independent contractors simply sign such agreements without thinking about how damaging such non-compete agreements can be on their long term career goals.  Spending money hiring legal counsel to assist in the negotiation of a non-compete agreement is money well spent if one considers the long term impact that a broad non-compete contract can have on your career, including your ability to switch employers, start your own business and be paid what you are worth. If you’ve already asked the question “Are Non Compete Agreements Enforceable” and you’ve decided that yours isn’t, we can help. Or if you still don’t know the answer, we can help decide that too. As a trusted Denver employment lawyer, you will be in good hands to get the contract you deserve.

Contract Attorney in Colorado

If you have already signed a Colorado non-compete agreement, it makes sense to seek qualified legal counsel like Hansen Law Firm to assist you in understanding your rights and responsibilities under the agreement.  It would be tragic to simply assume that you are subject to the restrictions of a non-compete agreement when a skilled legal professional could review your agreement and tell you otherwise.

At Hansen Law Firm, we can help you navigate the vagueness and complexity of the law regarding non-compete and non solicitation agreements in Colorado. If you still have more questions about your specific agreement and are Colorado non compete agreements enforceable, call us. Our Denver contract lawyers are experts on all things related to non-compete agreements and their legality and enforceability within the State of Colorado. To schedule a free consultation, please call 303-785-7777.

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