The employer seeking to enforce a restrictive covenant has the burden of showing that it is necessary for protecting its interests. (Cambridge Engineering v. Mercury Partners (2007)).
Continued employment may be adequate consideration for a non-compete agreement. If the worker is employed for a “substantial period” of time beyond the point of potentially being let go can be sufficient consideration. Although there is no fixed definition, at least two years of employment is generally considered to qualify, but less time may not. (Prairie Rheumatology Associates S.C. v. Francis (2014)).
There is no precise maximum amount of time for a non-compete agreement in Illinois, and whether a particular term is enforceable will depend on other parts of the agreement, such as how wide an area it covers.
In agreements found in employment contracts:
Agreements that are part of the sale of a business may allow for longer terms. In the sale of a trucking firm, a non-compete agreement lasting ten (10) years within a 100-mile radius has been considered enforceable. (Russell v. Jim Russell Supply, Inc. (1990)).
If a portion of a non-compete agreement is unreasonable, a court may limit it in such a way that renders the agreement reasonable while upholding the purpose of the agreement. (Total Health Physicians, S.C. v. Barrientos (1986))
Including a “severability” clause in a non-compete agreement, which states that if one or more parts of the agreement are found unreasonable, then the other parts still apply, makes it more likely that a court will “blue pencil” an agreement than if there were no such clause. (Abbott-Interfast Corp. v. Harkabus (1993))