One of the means of keeping afloat in today’s competitive market is to hire employees who are ‘fit’ for a particular job. However, before employers may tap the full potential of their employees, the former are expected to invest so much time, effort and money in honing their skills and perfecting their work proficiency. In fact, some employers even send their employees abroad and pay all necessary expenses for their training and professional growth.But then, reality bites, because after acquiring the necessary experience and expertise, the employee has to leave the company due to tempting offers and fat bonuses dangled by a competitor company. What is even worse is when this employee starts to solicit the services of his colleagues and brings the whole team with him to the competitor.

So as to mitigate, if not end, the ill effects of the above practice, employers may explore the possibility of providing restrictive covenants in their employment contracts to regulate the post-employment action and activity of their employees. These restrictive covenants are express contractual terms, which bind an employee to comply with the restraint agreed and stipulated upon, and prevent him from taking certain action(s) when he leaves the company.

Restrictive covenants may include: non-competition/non-compete clause – when the employee is prevented from directly competing or working for a competitor of his former employer, or when the employee is prevented from setting up a competing business; non-solicitation clause – when a duty is imposed on the employee not to approach his former employer’s customers or prospective customers, or when the employee is prevented from taking customers/clients of his former employer; and non-poaching clause – when the employee is prevented from enticing his former employer’s staff away from the business, the aim is to prevent the employee from taking key employees with him to his new employment or business.

The validity of restrictive covenants, such as those mentioned above, is anchored on law and applicable jurisprudence.

Thus, the employer and the employee may establish such stipulations, clauses, terms, and conditions as they may deem convenient (Art. 1306, Civil Code), and that the obligations arising from the agreement between the employer and the employee have the force of law between them and should be complied with in good faith (Art. 1159, Civil Code) (Oxales v. United Laboratories, Inc. [G.R. No. 152991, 21 July 2008]).

Likewise, restrictive covenants are enforceable in this jurisdiction, unless they are unreasonable. And in order to determine whether restrictive covenants are reasonable or not, the following factors should be considered: whether the covenant protects a legitimate business interest of the employer; whether the covenant creates an undue burden on the employee; whether the covenant is injurious to the public welfare; whether the time and territorial limitations contained in the covenant are reasonable; and whether the restraint is reasonable from the standpoint of public policy (Rivera v. Solidbank Corporation [G.R. No. 163269, 19 April 2006]).

Restrictive covenants are not necessarily void for being in restraint of trade. In deciding to include a restrictive covenant in the employment contract, employers must see to it that there are reasonable limitations as to time, trade and place (Tiu v. Platinum Plans Phils., Inc. [G.R. No. 163512, 28 February 2007]).

To concretise, a non-compete clause in the employment contract of an engineer working in an IT firm cannot prohibit the said engineer from working in another IT firm during his entire lifetime. Neither can the said non-compete clause validly prohibit the engineer from working in another trade (e.g. mining, construction etc.), which is not at all connected with the IT industry, nor can he be prohibited from working in all IT firms in the Philippines. Under any such circumstance, since there is no “reasonable limitation as to time, trade and place”, the restrictive covenant will be struck down for being violative of public policy.

Employers, however, must realise that even a carefully drafted restrictive covenant is not a cure-all remedy. Undeterred employees will simply leave as soon as they can find new employers who will gamble more on their experience and expertise, rather than honouring the restrictions. If it reaches this point, the resolve of the aggrieved employer will be tested in enforcing the restrictive covenants, more so that other employees are merely waiting for the employer’s move, until such time that they themselves are also ready to test the hot waters.

This article first appeared in Business World.

The author is a Partner of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), Cebu Branch.

ACCRALAW Tower, 2nd Avenue corner 30th Street
Crescent Park West, Bonifacio Global City, 0399 Taguig, Metro Manila, Philippines
Tel: (632) 2231-4223 / Fax: (632) 4037007 or (632) 4037008
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