Employers need not pay additional consideration to existing employees to support non-compete agreements
Monday, June 20, 2011 at 5:58PM An employer need not provide additional consideration to support a non-compete agreement entered into with an existing employee under the Colorado Supreme Court’s ruling in Lucht’s Concrete Pumping, Inc. v. Horner, et al. The Colorado Court of Appeal’s earlier ruling in the case required additional consideration on the basis that the employee would otherwise be in the same position as he was before he signed the agreement. The Colorado Supreme Court held that an employer’s continuation of an at-will employee’s employment constitutes adequate consideration. The court limited its ruling to the factual situation where an existing at-will employee is presented with a non-competition agreement by his employer and the employee has the option of either accepting the agreement in exchange for continued employment or rejecting the agreement and leaving the company.
A non-competition agreement, like any other contract, must be supported by consideration. Courts have liberally interpreted what constitutes adequate consideration. For example, in this case, consideration may take the form of forbearance, where one party refrains from doing something that it is legally entitled to do. The Colorado Supreme Court reasoned that, because an employer may terminate an at-will employee at any time during employment, the employer’s forbearance from terminating the at-will employee in exchange for the employee signing a non-competition agreement constitutes adequate consideration.
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