How enforceable are non-compete clauses that prevent employees being enticed away?

Generally, non-compete clauses are considered to be unenforceable as an unlawful restraint of trade and contrary to public policy, unless the employer can show that:

A. it has a legitimate proprietary interest that it is appropriate to protect; and

B. the protection sought is no more than is reasonable having regard to the interests of the parties and the public interest.

Non-compete clauses operate to prevent a former-employee using proprietary information of the company to an unfair advantage in his new employment and/or to the former employer’s disadvantage. Proprietary information includes know-how, trade secrets, customer lists, trade connections, confidential information or goodwill.