Chicago Business Litigation Lawyer Blog
You found a better job, or you were let go, and now a letter from
your old employer’s lawyer waves the non-compete you signed years ago
and tells you that you cannot take the new position. It feels like a
trap. You signed the paper because you needed the job, no one let you
negotiate it, and now it threatens the paycheck your family depends on.
Here is what the letter does not tell you. Illinois has rewritten the
rules in favor of employees, and many of the non-competes that employers
still mail out are not enforceable at all.
This is a plain guide for an Illinois worker who has been handed a
non-compete or a cease-and-desist letter. The law gives you more
protection than the letter suggests, and knowing where the lines fall is
what turns a scary demand into a manageable one.
What is the Illinois Freedom to Work Act?
The Freedom to Work Act, 820 ILCS 90, is the Illinois statute that
governs non-compete and non-solicitation agreements signed on or after
January 1, 2022. The 2022 version rewrote the law to protect lower-paid
and mid-level workers, to require real procedural fairness before you
sign, and to void covenants that fail its standards. If your agreement
is newer, the Act controls it directly. If it is older, the Act still
signals how Illinois courts now view these restrictions.
Is my non-compete valid if I earn under seventy-five thousand dollars?
Often it is void. Under the Act, an employer cannot enforce a
non-compete against an employee whose actual or expected annualized
earnings do not exceed seventy-five thousand dollars. A non-solicitation
agreement, the kind that bars you from taking customers or coworkers, is
void if your earnings do not exceed forty-five thousand dollars. Those
thresholds step up over time, with the non-compete floor rising to
eighty thousand dollars on January 1, 2027, so the number to use is the
one in effect when you signed. If you earned below the applicable
threshold, the restriction is void by statute, no matter what the
agreement says.
Did my employer have to give me time and tell me to see a lawyer?
Yes, and many employers get this wrong. The Act requires an employer
to advise you in writing to consult with an attorney before signing, and
to give you at least fourteen calendar days to review the agreement. An
employer that skipped those steps handed you a defense, because a
covenant entered without the required notice and review period does not
meet the statute’s conditions for enforceability.
What if I only worked there a short time before I left?
Illinois requires adequate consideration for a non-compete, and
continued employment alone counts only if it lasts long enough. In
Fifield v. Premier Dealer Services, Inc., the Appellate Court held that,
absent other consideration, two years of continued employment is
generally required to support a restrictive covenant, whether the
employee quit or was fired. Courts applied that rule in McInnis v. OAG
Motorcycle Ventures, Inc., where eighteen months was not enough. Federal
courts sitting in Illinois have not all followed the bright line, so the
analysis is fact-specific, but if the only thing you received was the
job itself and you left well short of two years, the covenant may fail
for lack of consideration.
Even above the threshold, is my non-compete automatically enforceable?
No. Clearing the salary floor is only the start. Illinois still
applies the common-law test from Reliable Fire Equipment Co. v.
Arredondo, where the Illinois Supreme Court held that a restrictive
covenant is enforceable only if it protects a legitimate business
interest, judged on the totality of the circumstances, and is reasonable
in time, geographic scope, and the activity it restricts. A covenant
that locks you out of an entire industry across the whole country to
protect a single account is the kind of overbroad restriction Illinois
courts refuse to enforce.
Can they still come after me for trade secrets?
They can try, on a separate track. Even where a non-compete fails,
the Illinois Trade Secrets Act, 765 ILCS 1065, lets a former employer
sue if you actually took or used its confidential information. The
protection for you is simple and strict. Do not take documents, files,
customer lists, or data when you leave, and do not load anything onto a
personal device. Walk out with what is in your head and your own
contacts, and you stay on the right side of that line.
What happened to the federal ban on non-competes?
For a short time it looked as though a federal rule from the Federal
Trade Commission would ban most non-competes nationwide. A federal court
set that rule aside in Ryan, LLC v. FTC, and the agency has since
dropped it, so there is no federal ban in force. That means Illinois law
is what protects you, and Illinois law protects you well.
What should you do if you get a cease-and-desist letter?
Stay calm and protect your position. First, do not quit the new job
out of fear, because the letter is a demand, not a court order. Second,
do not take or keep any documents or data from your old employer,
because that is the one thing that can turn a weak case against you into
a real one. Third, check the two threshold questions right away: what
you earned, and whether the employer gave you the fourteen-day review
and the written advice to consult counsel. Fourth, have the agreement
reviewed, because the scope, the timing, and the consideration often
make it unenforceable. Fifth, respond through counsel rather than
arguing directly with the other side, because a measured legal response
usually ends the threat faster than a phone call does.
An old non-compete is not the wall your former employer wants you to
think it is. Illinois law tore down much of that wall in 2022, and the
worker who knows the new rules can usually take the better job.
Big-firm firepower, with the partners on your case
Peter S. Lubin and James V. DiTommaso are Chicago business litigation
lawyers who try cases throughout Illinois. Peter is a University of
Chicago Law School graduate who has taught trial practice there for
decades and is an Illinois Super Lawyer. He has served as lead counsel
in more than one hundred class actions and has handled more than one
hundred shareholder, LLC, derivative, breach of fiduciary duty, and
fraud matters on both the plaintiff and the defense side. Crain’s
Chicago Business credited him with the largest class action settlement
of its year, a forty million dollar recovery. The firm has been named
DuPage County Law Firm of the Year, and its lawyers have represented
companies including McDonald’s, Motorola, and Experian and have
litigated against adversaries including AT&T and General Motors.
James DiTommaso is a Chicago-Kent College of Law graduate with a
certificate in business law who served with the Illinois Appellate Court
and argued a case before the Illinois Supreme Court. When you hire this
firm, the lawyers whose names are on the door handle your case.
If your old employer is using a non-compete to block your next job,
find out whether that agreement can actually be enforced before you walk
away from the offer. Call DiTommaso Lubin, P.C. at 630-333-0333 for a
free consultation, or contact us
online.