In some situations, employers will apply for a non-compete clause after the onset of dementia. In most cases, maintaining employment is not considered a good consideration. In other words, an employer`s agreement to continue to employ the worker alone will not support a non-compete agreement. If the working relationship was already underway, there must be a new form of reflection. This is due to the so-called « pre-existing customs rule, » which states that a party`s agreement to do something it already wanted to do does not create a quid pro quo for a contract. Therefore, for a competition agreement signed after the start of employment to be valid, the worker must have a new advantage. An increase, bonus and/or promotion may offer all considerations for a non-compete clause signed by an existing staff member. Historically, under the English common law system, widely adopted in the United States, non-competition prohibitions have been considered non-applicable trade restrictions. The common law promoted competition in the open market and weighed on a worker`s right to earn a living rather than a company`s right to protect itself from potentially unfair competition. In a more modern era, courts began to view non-competition clauses as a private contract case between the employer and the worker rather than a matter of public policy. Since these factors are largely subjective, much depends on how the Tribunal recognizes the concrete facts of the case pending. The actual legitimacy of a commercial purpose depends on the nature of the employer`s activity and the exact interest invoked.

If the employer does not have a legitimate business purpose, most of the non-competition clause is unenforceable. The goal is not just to prevent employees from leaving the country or to punish those who do. Proponents of non-competitive measures point out that knowledge has become an increasingly important part of each company`s wealth in an information-based economy. Companies should have the right to protect their intellectual property and know-how because they have invested time and resources in their development. Similarly, proponents argue that a company that has invested for years in developing good customer relationships should not risk losing goodwill if a major employee has a defective competitor. And it would not be fair to allow a competitor to reap the rewards of specialized training given to a worker at the expense of the former employer. According to this reasoning, the refusal to impose non-competition rules will deter employers from investing resources in the development of their workers. Although the Tennessee Court of Appeals applied the New Jersey law governing Manchir`s non-compete agreement, the court`s decision is telling, as the New Jersey law seems very similar in every way to that of Tennessee.

Manchir couldn`t use anyone to do something he wasn`t allowed to do. Nevertheless, Manchir oversaw a sales team that did exactly what Manchir himself could not do, and he even benefited financially from the efforts of his subordinates.