The national debate around non-compete agreements has reached a fever pitch. The Federal Trade Commission's sweeping rule to ban most non-competes — finalized in April 2024 — was struck down by a federal district court in Texas before it could take effect, and its fate remains entangled in appellate litigation. For employers, however, waiting on Washington to settle the matter is a dangerous strategy. For Human Resources professionals, the practical takeaway is clear: non-competes should not be treated as a standard onboarding form that every employee signs without thought.

The Legal Landscape — Georgia's Restrictive Covenants Act

For most of the 20th century, Georgia courts applied a strict "blue-pencil" doctrine to non-competes that allowed judges to strike unenforceable language, but did not allow judges to rewrite or modify clauses that were deemed unenforceable. If a single clause was overbroad, the entire agreement often failed.

That changed dramatically with the passage of O.C.G.A. § 13-8-50 et seq., the Georgia Restrictive Covenants Act (“RCA”), which took effect on May 11, 2011. The RCA fundamentally restructured the legal framework of restrictive covenants in Georgia in three critical ways:

1. Courts are now allowed to modify — not merely strike — overbroad restrictive covenants to make them reasonable and enforceable.
2. Covenants are evaluated under a reasonableness standard, considering time, geographic territory, and scope of activity.
3. Employers must now demonstrate a protectable legitimate business interest, such as trade secrets, confidential information, or substantial customer relationships, for the covenant to be considered enforceable.

HR’s Role in Non-Compete Compliance

HR professionals should be aware of this legal framework because enforceability often depends on facts that HR is best positioned to document and relay. HR is who typically knows the employee’s job duties, reporting structure, customer exposure, access to confidential information, onboarding timeline, and role changes over time. Because those facts are critical when a Court later considers the enforceability of the agreement, ensuring that the Company has appropriate information at the time of signing is necessary.

In practice, HR’s role is not to make any legal judgments alone. Rather, HR’s role is to build the process that gives Company attorneys accurate information before the agreement is signed. That process should help the Company avoid one-size-fits-all restrictions and should ensure that non-competes are used selectively for employees whose roles create a real competitive risk.

The "Janitor Rule" and Why It Matters

The "Janitor Rule" is the principle that a non-compete agreement cannot be so broadly worded that it would effectively prohibit a former employee from working for a competitor in any capacity whatsoever — including in a role entirely unrelated to the position they held with the former employer. Courts have consistently held that such provisions are unreasonably overbroad in their scope of restricted activity.

For HR, the key is to ensure that any restrictions in place focus on the work the employee would actually perform, the confidential information the employee actually would access, and the competitive harm the Company is actually trying to event. Accordingly, when asking an employee at the time of hire to sign a restrictive covenant, it is necessary to ensure that the employee’s actual role and actual responsibilities are considered.

Geographic Restrictions — Ensure Territory is Matched to Employee’s Actual Footprint

In addition to considering the employee’s role, geography remains one of the most litigated and most frequently fatal elements of non-compete agreements. In Georgia, a geographic restriction is presumptively reasonable if it is limited to the territory in which the employee worked during the last two years of the employee’s employment.

For HR teams, this means the company should be able to explain the territory before the employee signs. For example, if an employee works only in Atlanta, a nationwide restriction may be difficult to justify unless the employee’s actual responsibilities support that broader scope. If an employee manages customers across multiple states, the company should be prepared to document that actual customer footprint.

A better HR process is to identify the employee’s territory at the time of hire or promotion and update that information when the employee’s role materially changes. The goal is not to create the broadest possible restriction. The goal is to create a restriction that reflects the employee’s actual competitive footprint and gives the company a better chance of enforcing the agreement as written.

Do Not Rely on Courts to Fix the Agreement

Although Georgia courts now have authority to modify overbroad restrictions, employers should not treat it as a safety net that makes careful drafting unnecessary. Judicial modification is discretionary, not mandatory.

Courts are more likely to modify a restriction that is only slightly overbroad than one that appears to overreach significantly. Courts may also be less sympathetic when an agreement appears designed to chill competition rather than protect legitimate business interests. If the employer cannot identify a clear protectable business interest, modification becomes less likely because there may be nothing legitimate for the court to protect.

For HR professionals, the practical message is that the signing moment matters. The company should aim to get the agreement right the first time, not after litigation begins. The article’s original warning remains the right one for HR: relying on a court to fix an overbroad agreement means the company has already lost control of the outcome.

Workforce Tiering

The strongest HR contribution may be workforce tiering. Rather than issuing the same non-compete to every employee, HR should help classify roles based on competitive risk. The highest-risk category may include executives, senior sales employees, employees with strategic customer relationships, employees with meaningful access to trade secrets, and employees with substantial confidential information.

Lower-risk employees may not need a non-compete at all, even if they still need confidentiality, non-solicitation, or other protective agreements. Restrictions should be proportionate to actual competitive risk. HR can operationalize that point by connecting each restrictive covenant to the employee’s job duties, customer exposure, confidential information access, and territory.

Call Legal

As stated before, HR’s role is not to make legal judgments. HR should involve legal counsel whenever questions involving non-competes occur. HR should also flag for legal counsel agreements that contain language that will likely be struck by courts, as discussed above. Further, legal review is incredibly important when HR is reusing an older agreement with a new employee. Because legal framework is ever changing, ensuring that each employee is signing an up to date agreement is necessary.

Conclusion

For HR professionals, the best non-compete strategy is not a stronger template. It is a disciplined process that uses restrictive covenants selectively, tailors them to the role, documents the business rationale, and gets the agreement right before the employee starts. Georgia courts are deciding enforceability questions now, and employers that have already done the careful HR work will be in the best position to defend the agreements they choose to use.