United States: Non-Compete News – Georgia Court Interprets Who Can Be Subject To A Non-Compete

Executive Summary: Effective May 2011, Georgia's Restrictive Covenants Act (RCA) represented a significant change to pre-existing Georgia law. Since then, however, very few courts have interpreted the RCA, leaving employers and practitioners alike with questions over how, and under what circumstances, restrictive covenants agreements may be used to protect an employer's legitimate business interests.1 One of the few decisions interpreting the statute, CSM Bakery Solutions, LLC v. Debus (N.D. Ga. 2017) underscores the reality that some employees in Georgia simply are immune from post-employment non-compete provisions – even where the covenants are reasonably tailored in duration, geographic proximity, and scope of precluded activity.

The plaintiff in the case, Kathleen Debus, was previously employed in the sales department by a Georgia-based bakery-supply manufacture, CSM Bakery Solutions, LLC (CSM). In 2016, she became a sales representative assigned to one of CSM's biggest grocery clients, Jewel. During her employment, Debus signed an employment agreement where she agreed, for a period of one year following the termination of her employment, not to compete against CSM or solicit any of its clients with whom she had worked while at CSM. Specifically, she agreed that:

for a period of one (1) year after Termination, [she would] not, directly or indirectly, own, manage, operate, join, control, be employed by or with, or participate in any manner with a Competing Business anywhere in the Territory where doing so will require [her] to engage in Competitive Activities or provide Competitive Products or Services.

Four months after she became a sales representative, Debus left CSM to join Lawrence Foods Inc., a direct competitor of CSM. In her new position, Debus performed the same or similar duties that she performed for CSM – including some directly with Jewel.

CSM sued Debus and Lawrence Foods seeking a preliminary injunction to enforce the restrictive covenants contained in Debus' employment agreement. Debus responded by arguing that her employment did not fit within the scope of the RCA. As a consequence, she claimed, the restrictive covenants contained in the agreement were unenforceable.

In its opinion, the court first explained that non-compete provisions in Georgia are only enforceable if they are reasonable in duration, geographic proximity, and scope of activities precluded. The court went on to explain, however, that even if a non-compete is reasonable in those three respects, it is not enforceable if it does not meet the threshold question of whether the employee falls within the scope of the statute in the first place.

Specifically, the court explained that under the RCA a former employer cannot enforce an agreement that restricts competition by any employee who did not, in the course of his or her employment with the former employer:

  1. Customarily and regularly solicit for the employer customers or prospective customers;
  2. Customarily and regularly engage in making sales or obtaining orders or contracts for products or services to be performed by others;
  3. Perform the following duties:

    • Have a primary duty of managing the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
    • Customarily and regularly direct the work of two or more other employees; and
    • Have the authority to hire or fire other employees or have particular weight given to suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees; or
  4. Perform the duties of a key employee or of a professional.

Analyzing the statutory language, the court found Debus' employment with CSM did not meet any of the exceptions set forth above as follows:

  • First, Debus did not regularly and customarily solicit customers or prospective customers for CSM. Although she held the position of a sales representative, the court found Debus' job title alone was irrelevant to the inquiry. Instead, it found significant the fact that CSM could only adduce six emails (over her five years of employment with the company) as evidence of her solicitation efforts with customers, which was insufficient to establish that her position qualified for the first exception;
  • Second, Debus was not customarily engaged in sales with CSM. Although she participated in sales meetings and bakery manager training meetings to facilitate the ongoing relationship between CSM and Jewel, the evidence at trial showed that, in actuality, Debus' superior was responsible for the transaction with the customer. Significantly, the court also noted that CSM had not presented any evidence that it would have expected to see if Debus was actually engaged in a sales-exception qualifying role (including sales records, commission sheets, or other documents);
  • Third, Debus did not perform the duties required by the third exception. The court found that she did not have the primary duty of "managing the enterprise" because even at her highest position, Debus still reported to two supervisors who managed her work. It also found she did not "customarily and regularly" manage two or more employees; and
  • Forth, Debus failed to qualify as a key employee. Although Debus obtained a high level of notoriety, reputation, and public persona as CSM's representative for Jewel, the court found that her status within the company – a relatively low-ranking employee in an international business with thousands of employees – prohibited her from being "key."

The court also briefly addressed the non-solicitation of customers provision contained in Debus' employment agreement, which prohibited her from soliciting "for the purpose of diverting, taking away or disrupting, or of attempting to disrupt any of CSM's prospective clients or clients." The court found Debus had not violated the provision despite her post-CSM contact with Jewel. The evidence at trial showed CSM lost most of Jewel's business prior to Debus leaving (for reasons unrelated to Debus) and the court reasoned that it would be difficult for Debus to solicit a client CSM did not possess at the time she left employment.

Accordingly, the court granted Debus' motion to dissolve the preliminary injunction against her.

Bottom Line

Although there is relatively little case law on Georgia's Restrictive Covenants Act, CSM Bakery Solutions makes clear that Georgia courts still cautiously analyze and construe the applicability of post-employment restrictive covenants. In light of this case, practitioners should continue to carefully draft restrictive covenants agreements and prudently discuss them with their clients. Likewise, employers should judiciously evaluate whether their employees – as a threshold matter – meet one of the four exceptions listed above to ensure that otherwise reasonable restrictive covenants are enforceable against them.


1 To see our legal alert discussing the first-ever published decision interpreting how a Georgia court may now modify an overbroad non-compete provision click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions