United States: Use Of Out-Of-State Restrictive Covenants Ending Quickly In California

Two years ago, TSW reported on several cases in which corporations outside of California successfully enforced non-compete agreements against California employees. They did so by using employment agreements containing foreign choice-of-law provisions and foreign forum-selection provisions.

We also reported that California had taken measures to correct this "loophole" by enacting California Labor Code section 925. Section 925, which went into effect on January 1, 2017, forbids employers from requiring employees to agree to foreign forum-selection and choice-of-law provisions as a condition of employment. It only applies to employees who primarily reside and work in California and who were not represented by counsel in negotiating the forum-selection or choice-of-law provisions. Its application is also restricted to contracts that have been "entered into, modified, or extended on or after January 1, 2017."

At the time of our prior article, California courts had yet to apply the statute. In light of recent inquiries and requests from TSW readers, however, we've decide to provide an update on section 925 and its application.

As expected, courts have refused to apply section 925 when considering older contracts that have not been recently modified. See e.g., Scales v. Badger Daylighting Corp., No. 117CV00222DADJLT, 2017 WL 2379933, at *1 (E.D. Cal. June 1, 2017) (declining to apply section 925 to pre-2017 contract). The statute, by its own terms, does not affect such contracts, and California Courts have specifically rejected an argument that section 925 evidences California Public Policy that should retroactively reach pre-2017 contracts. Ryze Claim Sols. LLC v. Superior Court, 33 Cal. App. 5th 1066, 1072 (2019) (reversing "trial court's decision to apply the policy expressed in Labor Code section 925 to [the employment agreement at issue], which was not entered into, modified, or extended on or after January 1, 2017.")

It also comes as no surprise that courts have cited to section 925 in deciding not to enforce foreign forum-selection and choice-of-law provisions. See Depuy Synthes Sales Inc. v. Stryker Corp., No. EDCV181557FMOKKX, 2019 WL 1601384 (C.D. Cal. Feb. 5, 2019) (declining to enforce form-selection and choice-of-law provisions and denying defendant's motion to transfer action to the District of New Jersey). In other words, the law appears to be working as intended.

Much of the litigation in this area has involved disputes about whether an older contract has been sufficiently "modified" or "extended" after January 1, 2017 such that it falls within the purview of section 925.

In Yates v. Norsk Titanium US, Inc., No. SACV1701089AGSKX, 2017 WL 8232188, at *3 (C.D. Cal. Sept. 20, 2017), the court found that section 925 did not apply to a pre-2017 contract and thus upheld the contract's forum-selection clause and granted the motion to transfer. The employee argued that section 925 should apply to the contract because it had been modified through an "implied-in-fact" modification after January 1, 2017. The Court rejected this argument because the contract expressly stated that any amendment must be "in a writing signed and dated by both parties."

Subsequent cases, in contrast, have generally applied section 925 when certain changes to the employee's employment occurs (e.g., a change in compensation structure). See e.g., Geoffrey Friedman, et al. v. Glob. Payments Inc., et al., No. CV183038FMOFFMX, 2019 WL 1718690, at *3 (C.D. Cal. Feb. 5, 2019) (applying section 925 to a pre-2017 contract because the employer modified the "Sales Policy Manual" after January 1, 2017 thereby affecting the employees compensation); Lyon v. Neustar, Inc., No. 219CV00371KJMKJN, 2019 WL 1978802, at *7 (E.D. Cal. May 3, 2019) (applying section 925 to a pre-2017 employment agreement because the employee signed a separation agreement when he left that modified the prior employment agreement).

Accordingly, while certain older and unmodified contracts may remain effective, the number of such contracts is shrinking quickly. In some cases, the courts appear to be applying section 925 aggressively to sweep in older contracts that have even minor modifications after January 1, 2017.

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