The National Law Review contains a very helpful article on new developments in Illinois non-compete agreement law. It discusses the requirement to work two years before a non-compete agreement can become enforceable if no other consideration or payment has been provided to enter into the non-compete agreement other than continued employment. The article states in part:
For those who find themselves embroiled in disputes involving non-compete and non-solicitation clauses, cases are often decided on the fundamentals of contract law. Any valid and enforceable contract requires three things. First, there must be an offer manifesting an intent to enter into a contract. Second, that offer must be accepted. Third, the element of consideration requires the parties to incur a detriment—to either do something they are not legally obligated to do or to refrain from doing something they otherwise could.
It is this third element of a contract that is often glossed over by businesses, lawyers, and sometimes even judges. In most contract disputes, Illinois courts do not inquire as to the adequacy of consideration, confirming only that some consideration exists and ending the examination there. But in non-compete cases, consideration can take center stage. Though this area of law is unsettled in Illinois, some measure of predictability as to how a court will assess consideration can be gained by looking at recent key decisions.
Fifield v. Premier Dealer Servs., 2013 IL App (1st) 120327, a 2013 case out of the Illinois First District Court of Appeals, pops up in numerous subsequent court decisions, and therefore warrants a close look. In it, an employee signed a contract preventing him from soliciting any of his employer’s customers or competing with his employer for business for a period of two years following his departure from the company, provided that his departure was not due to his own resignation. Three months later he resigned and went to work for a competitor. He and his new employer argued that the non-solicitation and non-competition provisions were unenforceable because there was not adequate consideration.