This Comment considers a key question: do employers have a strategy to protect themselves if these restrictive states are restricting corporations from protecting their self-developed trade secrets? In doing so, Part II will discuss an approach that may allow employers to potentially circumvent the restrictive states. This can be achieved by requiring an employee to undergo private arbitration in a dispute with an employer—a strategy that has gained validity in light of the United States Supreme Court’s holding that upholds arbitration clauses even where significant public policy concerns exist. Specifically, an employer in a restrictive state could potentially enforce an arbitration through a choice of law clause that would provide the employer an opportunity to follow another state’s more lenient approach for non-compete agreements.
The ADR Loophole to Restrictive Non-Compete Agreements,
23 Marq. Intellectual Property L. Rev. 57
Available at: https://scholarship.law.marquette.edu/iplr/vol23/iss1/6