Restrictive covenant review

Restrictive Covenant Review

Purpose

Produce a structured, attorney-ready review of restrictive covenants — non-competition, non-solicitation (of customers or employees), no-hire, and confidentiality provisions — wherever they appear: an offer letter, an employment or consulting agreement, an equity or incentive award, or a separation document. The skill inventories each covenant's scope exactly as written, organizes the enforceability factors as questions for counsel, and flags consideration and conflict-posture issues. It never concludes that a covenant is or is not enforceable — enforceability is intensely jurisdiction-specific and is an attorney determination. This is draft legal work product for attorney review, not legal advice.

Use When

• An employer is drafting or imposing covenants in an offer, employment agreement, equity award, or separation document and wants the scope and risk points organized before finalizing.
• An employee has been asked to sign covenants and wants a structured read of what each one restricts.
• A new employer is assessing the covenants an incoming hire signed with a prior employer, to understand the conflict posture before the hire starts.
• Covenants are being added or expanded at separation and their reach beyond any prior agreement needs to be mapped.
• A user asks "are these non-competes a problem?" or "what do these restrictions actually cover?"

Required Inputs

• The document(s) containing the covenants, in full. If the covenants are described but not provided, stop and request the text. Never reconstruct covenant language from memory.
• The client's posture: employer imposing, employee bound, or new employer assessing an incoming hire's prior covenants. The risk framing differs materially by posture.
• The role, compensation, and work location(s) of the affected individual, as provided — scope reasonableness and which jurisdiction's law may apply both turn on these.
• Optional: the consideration offered for the covenants (initial employment, a raise, promotion, equity, severance, or other).
• Optional: any prior agreements the same individual has signed that bear on the covenants (a prior non-compete, an assignment agreement, a handbook acknowledgment).

If the covenant text or the client posture is missing, stop and request it before substantive work.

Do Not Use When

• The task is a full review of a severance or separation agreement as a whole — use severance-review; this skill goes deeper on the covenants specifically and can feed that review.
• The task is a first-pass review of a whole offer or hiring package — use hiring-review; route the covenant deep-dive here.
• The question is whether to enforce a covenant through litigation, or to seek or oppose an injunction — that is active-litigation strategy for counsel, not a covenant review.
• The user wants a conclusion on whether a specific covenant is enforceable, void, or safe to ignore — that is a legal determination this skill only frames questions for.
• The document contains no restrictive covenants — there is nothing for this skill to review.

Legal Safety Rules

• Source and citation discipline. Follow core/source-and-citation-discipline.md. Never invent legal authority, citations, quotations, statutes, cases, regulations, filing deadlines, or procedural rules. Label what is a provided source, a user-provided fact, an assumption, a legal inference, or an item requiring attorney verification, and use a citation placeholder such as [Attorney to insert authority] when no source is available.
• Produce draft legal work product for attorney review. This is not legal advice.
• Never conclude a covenant is enforceable, unenforceable, void, or safe to ignore. Enforceability turns on the governing law, the covenant's scope, the consideration, and the facts — all attorney determinations. Organize the factors as questions.
• Never assert what any jurisdiction's law requires. Some jurisdictions restrict, limit, or void certain covenants (particularly non-competes), and some regulate them by role, wage level, or industry — describe these only as categories to verify, each flagged [Verify current law] [verify jurisdiction]. Never state a duration, geographic radius, or wage threshold as a legal rule.
• Quote each covenant's operative language verbatim. Do not paraphrase scope into existence or narrow a broad term in the summary.
• Never advise an employee to breach, or an employer to enforce or waive. Whether to sign, to comply, to enforce, or to litigate are decisions for the party on counsel's advice.
• For an incoming-hire assessment, never conclude what the candidate may safely do — the permissible scope of the new role given prior covenants is an attorney call. Organize the conflict facts and flag them.
• Treat trade-secret and confidentiality questions with care: never assert that particular information is or is not a protectable trade secret.
• Do not compute any date — covenant duration, tolling, or a notice deadline. Record durations as written and flag [deadline verification required] where a period's running matters.
• Distinguish throughout: what the document says (quoted), what the user stated, what is assumed, and what counsel must verify.
• Preserve confidentiality: covenant reviews often involve sensitive competitive and compensation facts; keep them out of reusable templates.

Workflow

This skill draws on the Restrictive Covenants section (Section 4) of skills/employment/references/severance-release-red-flags.md where covenants appear in a separation context; consult it at Step 5.

1. Confirm inputs. Verify the covenant document(s), the client posture, and the role/compensation/location facts are provided. Request anything missing before proceeding.
2. State the gates. Record the client posture, the affected individual's role and work location(s), the potentially applicable jurisdiction(s) (each [verify jurisdiction]), and the "as of" date. Note that which jurisdiction's law governs may itself be contested — flag [ATTORNEY TO CONFIRM: governing law and choice-of-law enforceability].
3. Inventory the covenants present. Identify each restrictive covenant in the document: non-competition, customer non-solicitation, employee non-solicitation / no-hire, no-hire of contractors, confidentiality/trade-secret, non-disparagement (route non-disparagement framing to severance-review where relevant), and any IP-assignment or invention provisions that function as restraints. List each with its section reference.
4. Map each covenant's scope, quoted verbatim. For each covenant, record: the restricted activity or information; the duration; the geographic scope; the defined terms that set its reach (e.g., "Competing Business," "Customer," "Confidential Information"); and any carve-outs or exceptions. Quote the operative language; flag any term whose breadth is ambiguous as [CONFIRM: intended scope of "<term>"].
5. Flag scope-reasonableness questions for counsel. Without concluding, list the questions a court in the governing jurisdiction may weigh: whether the duration, geography, and activity scope are tied to a legitimate protectable interest; whether definitions sweep in activity or customers the individual never touched; whether a "blue-pencil" or reformation posture is available in the jurisdiction. Consult Section 4 of the severance red-flags reference for the patterns to surface. Every point is [Verify current law] [verify jurisdiction].
6. Organize the consideration questions. Record what consideration is stated for the covenants (initial employment, a raise, equity, severance, or nothing identified). Flag for counsel whether the consideration is adequate under the governing law, particularly where covenants are introduced or expanded after employment began or at separation — never conclude adequacy. [ATTORNEY TO CONFIRM: consideration sufficiency].
7. Check statutory and role-based restrictions as categories. Flag, without asserting: whether the jurisdiction restricts non-competes by wage level, role, or industry; whether notice, review-period, or advance-disclosure formalities may apply; and whether any garden-leave or compensation-during-restriction requirement may attach. Each [Verify current law] [verify jurisdiction].
8. Assess the conflict posture (incoming-hire mode). If the client is a new employer assessing a candidate's prior covenants, organize: what the prior covenants restrict; how the proposed new role overlaps with the restricted activity, customers, or colleagues; what information the candidate must not use or disclose; and any onboarding safeguards to raise with counsel. Never conclude what the candidate may safely do — flag [ATTORNEY TO CONFIRM: permissible scope of new role given prior covenants].
9. Cross-check against prior agreements. If prior agreements were provided, note where the current covenants add to, conflict with, or duplicate them, and which document would control — flag the conflict, do not resolve it.
10. Flag missing documents and open terms. List every referenced-but-unprovided document (a plan the equity award incorporates, a policy the covenant references) and every ambiguous defined term.
11. List attorney verification items and assemble the output. Consolidate every placeholder, assemble the output in the format below, label it a draft for attorney review, and attach the unchecked checklist.

Output Format

Deliver the following, in order, labeled DRAFT — For Attorney Review — Not a Determination of Enforceability:

1. Summary — one paragraph: the document(s), the client posture, the covenants present, and the top issues — with an explicit statement that no enforceability conclusion is drawn.
2. Gates — client posture, role and location, potentially applicable jurisdiction(s) ([verify jurisdiction]), governing-law flag, relevant date.
3. Covenant Scope Inventory — table: Covenant | Section | Restricted Activity/Info | Duration | Geography | Key Defined Terms | Carve-outs | Verbatim Quote.
4. Scope-Reasonableness Questions — the framed questions from Step 5, each [Verify current law] [verify jurisdiction].
5. Consideration Questions — what is stated and the sufficiency question for counsel.
6. Statutory / Role-Based Flags — the category inventory from Step 7.
7. Conflict Posture (incoming-hire mode) — the overlap organization from Step 8, with the permissible-scope question flagged.
8. Prior-Agreement Interplay — additions, conflicts, and control questions.
9. Missing Documents and Open Terms — referenced-but-unprovided items and ambiguous terms.
10. Attorney Verification Items — every placeholder consolidated.
11. Assumptions — every assumption made, listed explicitly.

Use [CONFIRM: ...] wherever a fact, term, or legal requirement is unverified. Do not fill gaps with invented content.

Attorney Verification Checklist

• The full document(s) containing the covenants have been reviewed, and every referenced-but-unprovided document has been obtained.
• The client's posture (employer, employee, or new employer) is correctly identified.
• The governing law and the enforceability of any choice-of-law clause have been confirmed. [verify jurisdiction]
• Each covenant's scope — activity, duration, geography, definitions — has been assessed for reasonableness under the governing law. [Verify current law]
• Whether the jurisdiction restricts, limits, or voids any of these covenants by role, wage, industry, or category has been confirmed. [Verify current law]
• The consideration for the covenants has been assessed for sufficiency under the governing law, especially for covenants added after hire or at separation.
• Any notice, review-period, advance-disclosure, or garden-leave formalities that may apply have been confirmed. [Verify current law] [deadline verification required]
• The interplay with any prior agreements has been resolved, and the controlling document identified.
• For an incoming hire: the permissible scope of the new role given prior covenants has been determined by counsel, and any onboarding safeguards put in place.
• Confidentiality and trade-secret provisions have been assessed without this draft asserting what qualifies as a protectable trade secret.
• No covenant duration, tolling period, or notice date was computed by this draft. [deadline verification required]
• No statement in the deliverable asserts or implies that any covenant is enforceable, unenforceable, or safe to ignore.
• All [CONFIRM: ...], [ATTORNEY TO CONFIRM: ...], [Verify current law], and [verify jurisdiction] placeholders have been resolved before the review is relied upon.