In a recent decision, the Georgia Court of Appeals reaffirmed its previous holding (which had been vacated on other grounds) that a noncompete cannot prevent an employee from working for a competitor “in any capacity.” This is also known as the “janitor” rule because many courts use janitorial positions as an example of the type of position an employer does not have a legitimate interest in preventing someone from taking with a competitor.
In All States AG Parts, LLC v. Herzig, 2025 WL 545988 (Ga. App. February 19, 2025), the former employee was prohibited from associating with a competitor in any capacity. The Georgia Court of Appeals reiterated its previous holding that a noncompete is unreasonable and overbroad if it does not list specific limits on the type of activity and it effectively bars former employees from working in any capacity for competitors.
The court also noted that due to the wording of the agreement, it could not be blue-penciled to save it. While the “associate with in any capacity” language could be stricken, it still would have forbidden the former employee from “engaging in a business” similar to the former employer. This phrase also did not specify any particular restricted activities and its meaning was not explained, so the court found it could not say the trial court abused its discretion in declining to rewrite the noncompete.
This decision points out that courts will still strike down noncompetes if they are drafted too broadly and in a way that prohibits an employee from working for any competitor at all in any position, regardless of whether doing so would threaten a legitimate business interest of the employer. Companies should consult with counsel regarding the drafting of these agreements.
Benjamin Fink is known for his work in noncompete, trade secret and competition-related disputes. A shareholder at Berman Fink Van Horn, Ben concentrates his practice in business and employment litigation.
