What State's Law

The enforcement of post-employment covenants is governed almost entirely by each state's laws, which can vary widely.  There are radical differences in the enforceability of post-employment covenants even between adjacent states.  In some states, post-employment covenants are extremely easy to defeat, and in others the law is tipped heavily in favor of the old employer.

A complex but threshold issue is which state's law to apply -- the state mentioned in the contract, the state where the employee works or lives, the headquarters of the employer, or the possible states in which litigation could be brought.  That inquiry must always start with deciding where the employer is likely to bring the initial lawsuit or where the employee could commence her own litigation.

The analysis is further complicated by the issue of whether the parties have the option of filing suit in a federal court, and whether either party may attempt to raise barriers to a federal court lawsuit.