Continued At-Will Employment Not Consideration for Mid-Term Non-Compete

Five years after he was hired, Anthony Labriola?s employer? ?asked? ?him?? to? ?sign ?a ?non-compete without offering any additional benefits.? ?The Court held that ?a non-compete entered into after employment has commenced is validly formed when? there? is? independent? consideration? at? the time ?the ?agreement ?is? reached.????? ?Such independent consideration might consist of a promotion, bonus, a fixed term of employment or ?perhaps? access to protected information.?? The Court? erred,? however,? by? distinguishing? rather than disapproving a prior Division II case holding that there is consideration if an employee signs the non-compete after hire but before beginning work.?? Legally, it makes no difference when the employee signs the non-compete if there is no independent consideration.??? The majority further suggested that continued employment and/or continued training could constitute consideration in some cases, just not this one. ?Justice Madsen would have gone further and held that continued at-will employment is never sufficient consideration.?? Justice Madsen also would have invalidated the non-compete as substantively unreasonable.? ?The concurrence contains some excellent language on why non-competes should be limited.? ?The most important aspect of the majority opinion may end up being its holding that a prevailing employee is entitled to attorneys? fees if the employee merely partially invalidates a non-compete.?? ?The majority opinion has some good language regarding mitigation as well. ?Labriola v. Pollard Group, No. 74002-0 (Nov. 10, 2004).