The Restrictive Covenant Score, to Sign, Negotiate, or Walk

You have an offer packet in front of you and it carries a non-compete plus a stack of other restrictive covenants. This guide is for a candidate deciding whether to sign as-is, negotiate specific clauses, or walk, and it gives you a way to score each covenant on how much it restricts you and how likely it is to be enforced where you work. By the end you can produce a sign, negotiate, or walk decision that names the exact clauses to push on, so that when you spend money on a lawyer, the consult is targeted and cheap.

Law-firm ranking pages stop at "consult an attorney." That is the right last step, not the first one. This document does the self-scoring first, so you walk into that consult already knowing which two or three clauses are load-bearing.

What counts as a restrictive covenant, and why score them separately

A restrictive covenant is any clause that limits what you can do after you leave: where you work, whom you pursue, and what you own. The offer packet usually bundles seven of them, and each one binds under its own rule, so you score them one at a time, not once per packet.

Here is the bundle you are separating out:

• Non-compete - bars you from working for a competitor for a period, in a geography, defined against your role or the industry.
• Customer non-solicit - bars you from pursuing customers you served, usually named relationships within a lookback window.
• Employee non-solicit / no-hire - bars you from recruiting former colleagues.
• Invention assignment - governs who owns what you create; it does not restrict where you work.
• Garden leave - pays you to sit out during a restricted period.
• Forfeiture-for-competition - you lose vested equity or pay if you compete.
• Stay-or-pay / TRAP - a training repayment agreement provision that claws back training, retention, or relocation cost if you leave early.

The single most common mistake is to read the headline clause and stop. Even after California voided non-competes, the enforceable pressure migrated to non-solicits and invention assignment, and the newest fight is over training repayment agreements, which is exactly why California's AB 692 and New York's Trapped at Work Act had to be written as separate laws. The bundle outlives the headline clause.

Where you work sets the ceiling: void, gated, or reviewed

Enforceability is set by geography, not drafting. A non-compete that looks binding in one state can be completely unenforceable in another, because courts apply the work state's public policy. So the first thing to establish is which of three regimes your work state runs.

Void-outright states. Four states treat virtually all employee non-competes as void: California, Minnesota, North Dakota, and Oklahoma. North Dakota banned them back in 1865; Minnesota joined the group in 2023, voiding any non-compete entered into on or after July 1, 2023. Several trackers add Montana and, prospectively, Wyoming. In a void-outright state the non-compete is dead on arrival, but the rest of the bundle survives.

Salary-gated states. A dozen states gate enforceability by an income floor: below the threshold, the non-compete cannot bind you. These floors adjust, so treat any number here as a value to re-check against your state's current chart rather than a fixed figure.

Table A - Salary thresholds that gate a non-compete.

Illinois's $75,000 threshold is not set to increase until 2027; Colorado and D.C. adjust annually. The gate is a cliff, not a slope. A raise of a few thousand dollars can flip you from "cannot be bound" to "bound," which means the base pay you negotiate changes your own enforceability. If you are within a few thousand dollars of your state's floor, that is a live consideration in the pay conversation, not a side note.

Reasonableness-review states. Everywhere else, courts weigh duration, geography, and scope against the employer's protectable interest. Massachusetts and Illinois and Washington add a consideration requirement, and Massachusetts caps duration at 12 months and requires garden leave at 50% of your highest salary or other agreed consideration.

The FTC's attempt to void non-competes nationally is gone. A Texas federal court set the final rule aside on August 20, 2024, holding the agency had overstepped, and the FTC then withdrew its appeals. Scrutiny is back to case-by-case review under your work state's law. Do not draft your decision around a national rule that no longer exists.

How to score restrictiveness on each clause

Restrictiveness measures how much a clause actually limits you if it holds. Score three dimensions against documented reasonable ranges: duration, geography, and the definition of "competitor" or "customer." Each dimension has a range where courts routinely uphold and a range that draws heightened scrutiny.

For non-competes, a ban on a software engineer working anywhere in the US for two years likely goes too far. Shorter and narrower survives; broader invites a court to strike or narrow it.

For non-solicits, courts commonly treat 6 to 12 months as reasonable and 12 to 24 months as enforceable where there is a strong protectable interest, with 24 to 36 months facing heightened scrutiny. Customer non-solicits usually need no geographic limit because they run to named relationships. A blanket ban on "any client in the database" or "prospective" clients is the overreach signal.

Score each clause on a simple low / medium / high for restrictiveness. Duration inside the reasonable range and geography tied to a city or your actual accounts is low; nationwide, industry-wide, or multi-year is high. A clause that only bites if the company terminates you without cause is lower restrictiveness than one that bites no matter how you leave.

How to score enforceability, and what each signal proves

Enforceability measures how likely the clause is to hold up where you work. Combine four inputs: the work-state rule, the salary threshold, the choice-of-law position, and the presence of consideration. Each input proves something specific, and each can lie in a specific way.

The work state usually controls: the state where you work, not where you signed, is typically the governing factor. That is why the choice-of-law line is a claim to verify, not a settled answer. In California, Colorado, and Massachusetts, agreeing to another state's law over your residence can be void, and California employers cannot even require California-based employees to sign non-competes governed by another state's law. Courts in California, North Dakota, Minnesota, and Oklahoma often refuse to enforce regardless of the chosen governing law.

Consideration is a negotiable kill-switch. If the non-compete appears without additional compensation beyond standard severance, enforceability is questionable in the states that require consideration. In Estee Lauder v. Batra, a court reduced a 12-month paid non-compete to five months, which shows how quickly a court will narrow even a paid restriction. Asking for garden leave both improves the deal and, if refused, can weaken the clause, so the ask cuts both ways in your favor.

The scoring procedure, start to finish

Run the packet through seven steps. The order matters: self-score first so the attorney consult is targeted and cheaper. Several law-firm sources front-load "consult an attorney" as step one; that inverts the economics, because you pay a professional to do the sorting you could have done yourself.

The scoring in steps 1 through 5 is yours to do in about two hours. Refolk can shorten the front of this work: because Refolk writes and tailors your application materials from your own history, you already have a clean record of the roles, accounts, and inventions you built, which is exactly the context you need to test whether a clause reaches your specific work rather than the industry at large.

Drafting the counters: exact edits, clause by clause

A counter names the clause and the specific edit. Vague pushback ("this feels broad") gets a vague answer; a redline gets a redline. Practitioners counter on five levers: duration, geography, competitor definition, consideration, and a termination-without-cause carve-out.

The target ranges, drawn from what courts routinely uphold:

• Duration: shorten a non-compete to 6 months instead of 12 to 24; hold a non-solicit at 6 to 12 months.
• Geography: limit to within 50 miles of a city rather than nationwide.
• Scope: narrow "competitor" to your specific role, not the whole industry.
• Consideration: add garden leave, typically 3 to 6 months, and 50% of highest salary where you want the Massachusetts-style floor.
• Carve-out: the restriction only applies if the company terminates you without cause.

Subject: Offer - two edits to the restrictive covenants before I sign

Hi [name],

I'm ready to sign and excited to join. Two clauses in the agreement need adjusting to match my role, and I want to close them before signature:

1) Non-compete (Section X). As written it runs 18 months across the industry nationwide. I'd like it narrowed to 6 months, limited to my specific function, within 50 miles of [city], and applying only if the company terminates me without cause. If the current scope is important to you, I'm open to garden leave for the restricted period as consideration.

2) Customer non-solicit (Section Y). It currently reaches prospective customers and any account in the database. I'd like it limited to customers I personally served in the 12 months before departure, for 12 months.

I've left the invention-assignment and employee non-solicit language as-is. Happy to hop on a call. Can we get these two settled this week?

Thanks,
[you]

Statutory damages now flip the leverage on stay-or-pay clauses. Under California's AB 692, a worker can recover the greater of $5,000 per employee or actual damages plus attorneys' fees for a prohibited training repayment or stay-or-pay provision, and New York's Act carries fines of $1,000 to $5,000 per violation. That is new negotiating information: you can price the employer's downside of overreaching, which the ranking law-firm pages do not quantify.

How this goes wrong: false positives and traps

The most valuable part of a covenant score is knowing where it lies to you. Each of these is a documented way candidates misread the packet, in both directions - treating a dead clause as binding, and a binding clause as dead.

1. "My non-compete is void so I ignore the whole packet." The void state kills the non-compete, but the non-solicit, no-hire, and invention-assignment clauses can still bind. Check each clause separately against its own rule.

2. Reading the choice-of-law clause as settled. A Delaware or Florida governing-law line can be overridden where you work. Courts in California, North Dakota, Minnesota, and Oklahoma often refuse to enforce regardless of the chosen governing law. Check your residence rule, not the contract's stated state.

3. Treating a blue-pencil state like a void state. An overbroad clause is not automatically dead. In a blue-pencil state a court will enforce a narrowed version of an overbroad agreement, so an overbroad clause still creates real risk. Do not assume overreach equals unenforceability.

4. Confusing a non-solicit with a non-compete. A non-solicit still lets you take the competitor job. A lookback beyond 12 to 18 months or "prospective customers" language is the tell it has been drafted as a de facto non-compete. Red-line those phrases.

5. Assuming a repayment clause is enforceable because you signed it. In California from January 1, 2026 and New York from February 13, 2027, most training repayment provisions are void, but a pre-effective-date contract may still bind. Check the execution date against the statute.

6. Missing the invention-assignment "relates to" trap. Even in California, an own-time project that relates to the employer's business or demonstrably anticipated R&D is not protected under Labor Code 2870. Check whether your side project overlaps the employer's field before relying on the carve-out.

7. Signing a non-compete with no consideration in a state that requires it. A scary clause can be unenforceable for lack of garden leave or additional pay. Check whether your state - Massachusetts, Illinois, Washington - requires consideration and whether the packet provides it.

Invention assignment: the clause that owns your side work

An invention-assignment clause governs who owns what you create; it does not restrict where you work. Score it on ownership reach, not mobility. The question is whether it swallows work you did on your own time, on your own equipment, unrelated to the employer's business.

California Labor Code 2870 sets a statutory carve-out: an agreement cannot require assignment of an invention you developed entirely on your own time without the employer's equipment, supplies, facilities, or trade-secret information, that does not relate to the employer's business or anticipated R&D, and does not result from work you performed for the employer. Labor Code 2872 requires the employer to notify you of the carve-out, usually by attaching the text of 2870 as an exhibit. If that exhibit is missing, that is a flag to raise.

Texas and most other states have no statutory carve-out; the contractual terms control, subject only to general contract law. So in most states the edit you request is contractual, not statutory. Two carve-out asks travel well:

• A listed prior-inventions schedule (Exhibit A). List what you already own so it is carved out of assignment.
• An own-time / own-resources exception modeled on the 2870 language, even where the statute does not reach.

The role you hold changes which clause is load-bearing. In Refolk's index the US "Software Engineer" pool holds 347,874 profiles and the "Account Executive / Sales Director" pool holds 275,831 - close in size, but the binding clause differs by function. Engineers carry invention-assignment risk; sales roles carry non-solicit risk. Weight your score toward the clause your function actually triggers.

That 15.8x gap is the practical face of "enforceability is set by geography." US engineer mobility is spread across a patchwork of state rules, so the same clause scores differently for two candidates two states apart. When you read a covenant, you are reading your state's public policy as much as the drafter's intent.

Final verification before you sign or send

Before you sign, or before you send the counter, run this checklist. It catches the false positives from the failure-modes section and confirms you scored the clauses that actually bind you.

Keeping the score current

Two inputs in this model move, so re-check them rather than memorizing a value. The salary thresholds adjust annually - Colorado and D.C. move every year, Illinois not until 2027 - so pull your state's current chart when you score. And the stay-or-pay landscape is mid-shift: California's ban is live from January 2026 and New York's becomes operative February 2027, with other states watching. Check the effective date against your contract's execution date every time.

For the load-bearing clauses, the last step is a targeted consult. An employment attorney in your state, running a free first call, will read the governing-law clause, confirm where you work, and check scope, consideration, and any categorical rule. You are not paying them to sort the packet - you did that. You are paying them to confirm the two or three clauses you already flagged. That is the whole point of scoring first: the consult is short, cheap, and aimed.