Non-Compete Agreement Review Checklist — Kentucky

Confirm the named employer is the entity the worker actually works for and that gave whatever value supports the covenant. Kentucky's consideration analysis asks what the contracting employer gave up or handed over — a covenant papered with an affiliate that paid nothing and promised nothing starts the review with a consideration question instead of a clean answer.

The date does real work in Kentucky: whether the covenant was signed at the start of employment or partway through decides whether new consideration was required. An offer of employment supports a covenant signed at the outset, but a covenant signed by someone already on the payroll needs something new behind it — so pin down when the agreement was executed relative to the first day of work. A.1

Record the title and the actual duties. Kentucky has no earnings thresholds or title-based statutory gates for the ordinary workforce — the role matters because it drives the reasonableness analysis: what the worker can carry to a competitor, how hard the restraint lands on them, and what restraint the employer can honestly call fair protection all turn on what the person actually did.

Check that the governing state is stated. The selection decides whether the covenant is measured against Kentucky's fair-protection standard and its new-consideration rule for existing employees — and Kentucky law is a deliberate, defensible pick for a multi-state workforce, a point the governing-law item near the end of this checklist walks through.

Tie the definition to material the employer genuinely guards. Kentucky's trade-secret statute keys protection to information that has value because it is secret and that the employer takes reasonable efforts to keep secret — a confidentiality definition that sweeps in public information or everything the worker ever learned undercuts the very interest the covenants need to lean on. B.1

Keep trade secrets defined separately from ordinary confidential information, and align the definition with the statutory twin tests: independent economic value from secrecy, plus efforts that are reasonable under the circumstances to maintain that secrecy. The separate term lets trade-secret protection run as long as secrecy lasts and anchors the strongest protectable interest a Kentucky restraint can claim. B.1

One defined Restricted Period keeps every duration auditable. Kentucky imposes no statutory cap — the length is tested as part of the whole restraint, against what fair protection of the employer's interest actually requires and what hardship it imposes on the worker — so a clean, single definition is what lets a reviewer or a court see the duration plainly. B.2

Map the territory to where the employer actually does business. Kentucky case law shows a court can supply a reasonable geographic limit when a covenant omits one — at least in the sale-of-a-business setting — but an employment covenant should never bet on that: state the territory, and draw it around the real market rather than the company's ambitions. B.3

Bound the class to customers the worker actually served or dealt with during a stated look-back window. The customer relationships the worker personally built or managed are where the employer's goodwill interest is concrete; an entire-book-of-business definition turns a targeted restraint into a market ban and invites the undue-hardship half of the reasonableness test.

Keep the no-poach class to colleagues the departing worker actually worked with or supervised during the look-back window. No Kentucky statute speaks to employee non-solicits, so the clause is judged on the same holistic reasonableness principles as every other restraint — a modest, relationship-based class is far easier to defend than a workforce-wide hiring fence.

Name the interests in the vocabulary Kentucky recognizes: trade secrets, confidential business information, and customer goodwill. The reasonableness standard asks whether the restraint affords fair protection to the interests of the covenantee — a recital that claims only a wish to be free of competition names no interest the law protects, and the covenants resting on it inherit the gap. B.2

Describe the genuinely competing activity in concrete terms, then test the definition against the worker's trade. A definition that expands to anything the employer might someday do reads as suppression of ordinary competition rather than protection of a specific interest — and it loads the undue-hardship side of the scale before the covenant is ever enforced.

Where ownership or investment in competitors is restricted, look for a passive-holdings carve-out below a stated threshold. A clause that technically forbids index funds and ordinary public shares restrains conduct that threatens no protectable interest — gratuitous breadth that makes the whole package look like overreach to a court weighing hardship against fair protection.

A drafting convenience, not a requirement — many agreements inline the carve-out language instead. If the capitalized term appears, confirm its percentage matches the operative carve-out it supports.

Pin the term down so enforcement does not become a fact-by-fact dispute. A non-solicitation claim in Kentucky is won by proving contact with protected customers, so the definition should make clear what contact counts — and a definition tied to outreach the worker initiates toward covered customers is a narrower, more defensible restraint than one that captures every interaction.

Verify the trigger covers resignation, dismissal, and expiration of a fixed term the same way. Every covenant clock runs from this event, and in a state where the restraint's overall fairness is the test, ambiguity about when the restricted period started is ambiguity about how long the worker is actually restrained.

This is the item that kills more Kentucky covenants than any other. A covenant signed by someone already employed must come with independent, new consideration — a bonus, a raise, a promotion, or specialized training — because continued at-will employment by itself is not enough. The Kentucky Supreme Court held a covenant unenforceable where a sixteen-year employee signed a conflicts-of-interest agreement containing a non-compete and received nothing: the employer gave up no legal right, the employee gained no new benefit, and a bare recital of consideration did not save it. A covenant signed at the outset of the relationship stands on different footing — the offer of employment itself is the consideration. Find the signing date, find the consideration, and confirm the worker actually received it. C.1C.2

No Kentucky statute demands it, but the reasonableness standard weighs the situation of the parties — and a documented opportunity to take the agreement to a lawyer before signing is cheap evidence that the process was fair rather than pressured, which matters when a court is balancing hardship against protection.

The trade-secret obligation should last as long as secrecy does — that is how federal law defines the right, and Kentucky's own trade-secret act keys protection to the same combination of value-from-secrecy and reasonable secrecy efforts. A fixed expiry on trade-secret confidentiality quietly forfeits protection the employer is entitled to keep, and weakens the strongest interest its covenants can claim. D.1D.2

Give ordinary confidential information its own finite term. Kentucky tests every restraint for overall fairness, and a perpetual lid on non-secret information is exactly the kind of unbounded obligation that draws an overbreadth attack — the two-track structure keeps the perpetual duty where the law actually supports it.

Federal law, fully applicable in Kentucky: omit the immunity notice and the employer forfeits exemplary damages and attorney fees in a later federal trade-secret suit against the worker. For an employer whose restraint package leans on trade secrets and confidential information, giving up those remedies over a missing paragraph is an unforced error. E.1

Confidentiality and non-disparagement language has to leave wages, hours, and working conditions discussable. Federal labor law protects that speech regardless of the governing state, and the Board has been striking overbroad clauses in employee agreements. E.2E.3

Confirm the carve-out for disclosure required by law, court order, or a government investigation, with notice to the employer where lawful. A confidentiality clause cannot stop legally compelled disclosure, and a clause that pretends otherwise hands the worker an overbreadth argument for free.

Return-or-delete at separation, certified in writing. In a state whose trade-secret act requires reasonable efforts to maintain secrecy, the certification is part of those efforts — contemporaneous evidence of exactly what confidential material left and what came back, ready before any covenant fight begins.

Optional, and the quietest covenant in the Kentucky family: no statute addresses it, so it is judged on the same holistic reasonableness principles as everything else. Keep it inside the Covered Employees class and the Restricted Period, and remember that even this lighter restraint needs the same valid consideration as the rest of the package when an existing employee signs it.

Often the best-value covenant in Kentucky: enforcing it requires proving contact with protected customers rather than meeting the statutory trade-secret threshold, which makes it easier to win on than a misappropriation claim. Keep it tied to customers the worker actually served and to the stated Restricted Period so that the proof advantage is not squandered on an overbroad class.

Non-dealing bars serving covered customers even when they call first — a restraint on receiving business, not just chasing it. That extra reach lands squarely on the undue-hardship and public-interest sides of Kentucky's balancing test, so treat its inclusion as a deliberate escalation that needs its own justification, with the customer class and period kept tight. G.1

Available in Kentucky, but only on the common law's terms. Run the review in order: valid consideration first — for an existing employee that means new value, not just keeping the job — then the fair-protection standard checked in the Kentucky gates at the end of this list. A covenant that exists only to keep a former employee out of the market fails the standard no matter how it is worded. G.1G.2

When the employer can name its real competitors, the covenant should bind those instead of leaning on the open-ended Competitive Business definition. A named list is self-proving narrowness in a state whose test is whether the restraint affords only fair protection — it leaves the worker the rest of the industry and makes the employer's restraint look measured instead of punitive.

Rare and deliberate. Confirm the passive-holdings carve-out is intact and the clause shares the defined Restricted Period — an investment restraint with no carve-out and no end date is breadth no Kentucky protectable interest justifies, and it drags the rest of the package toward the overreach finding with it.

Standard to include with a stated term, but audit the carve-outs: truthful testimony, statements to government agencies, and protected workplace speech must sit outside the clause. Federal labor law polices overbroad versions in every state, and no Kentucky statute gives the clause any special shelter. H.1

The dedicated clause should state Kentucky's actual health-care rule precisely, because it does not track the usual physician shape: there is no general physician non-compete ban, and ordinary clinicians fall under the same reasonableness and consideration analysis as everyone else. The categorical statutory ban targets a different class — temporary direct care staff contracted with or employed by a health care services agency, whose employment opportunities the agency may not restrict in any manner, including through buy-out or non-compete clauses. The hard gate is checked in the Kentucky section at the end of this checklist. I.1

The worker's representation that no earlier agreement or order blocks the new role. It surfaces an incoming covenant on day one — when the parties can still test it against Kentucky's reasonableness standard and consideration rule — instead of after a demand letter arrives mid-quarter.

A genuine drafting choice, not a requirement. A notice provision can support enforcement, but warning a new employer off a worker based on a covenant a Kentucky court would refuse to enforce — for missing consideration or overbreadth — invites a tortious-interference dispute. If the clause appears, condition any outreach on a covenant that actually survives this checklist's gates.

The agreement should say whether the clock pauses during a breach — but flag any extension mechanism as an open Kentucky question. No staged statute or appellate decision squarely endorses automatic tolling, and the background rules cut both ways against it: any clause extending the restricted period must still satisfy the ordinary reasonableness standard, and Kentucky courts reform restraints toward reasonableness rather than mechanically enlarging them. Draft any extension as a separate, breach-tied, bounded restraint, and do not assume a court will revive an expired covenant. L.1L.2

Look for the acknowledgement that breach may cause irreparable harm and that an injunction is appropriate relief. Covenant enforcement is equitable at its core, and in Kentucky the court granting that relief is the same court weighing whether the restraint affords only fair protection — the acknowledgement supports the showing but never replaces it.

A commercial choice; the default American Rule applies if the agreement is silent. Check that any fee-shifting is mutual and prevailing-party based — a one-way employer clause adds to the harshness of a package whose overall fairness is exactly what a Kentucky court will be weighing.

The severability and reformation clause earns its place in Kentucky: courts here are empowered to reform or amend restrictions that come in overly broad or burdensome, and in a sale-of-business case a court went as far as supplying a reasonable geographic limit the covenant had omitted. But read the clause as permission, not insurance — the power is discretionary, and an employer that drafts an abusively broad covenant cannot assume a court will rewrite it into something enforceable. Prefer tiered, severable restraints sized to the protectable interest from the outset, so a court inclined to enforce has reasonable text to work with rather than a rescue request. N.1N.2

Per-covenant survival keeps each clock independently checkable — perpetual for trade secrets, finite elsewhere. The discipline matters in Kentucky because each surviving restraint is weighed on its own footing for fair protection and hardship: a defensible customer non-solicit should not have its fate bundled with a shakier market-wide ban inside one undifferentiated survival clause.

Confirm employer-side assignability to successors and that the worker cannot assign. No staged Kentucky authority resolves how covenants travel in a sale, so the contract text is what a successor will stand on — explicit language that names the restrictive covenants beats a generic successors-and-assigns recital, and whoever ends up enforcing still inherits the same consideration and reasonableness questions the original employer faced.

The clause should name governing law, venue, and the dispute process — and a Kentucky selection is a genuinely strong pick when it is anchored in a real connection to the state. Federal courts sitting elsewhere have honored contractual Kentucky choice-of-law clauses for non-competes, one applying Kentucky law under the agreement's choice-of-law and forum-selection clause and another holding that applying a blue-penciling state's law was not repugnant enough to the forum's public policy to override the parties' choice. The limit is that same public-policy test: the clause is strongest paired with a genuine Kentucky connection and a covenant reasonable on its own terms, and the supporting decisions are federal trial-court rulings, so never treat the clause as automatically dispositive. Q.1Q.2

Boilerplate with a Kentucky trap inside: a covenant added by amendment lands on a worker who is, by definition, already employed — which means it needs independent, new consideration of its own, because the employer that demands a signature while giving up nothing has given no consideration at all. Review the amendment mechanics so a routine refresh does not quietly create a covenant the employer never paid for. R.1

Run every restraint through Kentucky's controlling question: considering the subject, the nature of the business, the situation of the parties, and the circumstances of the case, does the restriction afford only fair protection to the employer's interests — without being so large that it interferes with the public interests or imposes undue hardship on the worker? Both halves bind. A restraint that protects a real interest still fails if it reaches further than that protection requires, and the analysis is judge-made: there is no general statute to fall back on, so the agreement's own tailoring is the entire case for enforceability. S.1

Do not accept a fixed term or radius copied from another form — there is no statutory cap and no safe-harbor number in Kentucky, so duration and territory are weighed together against the employer's actual footprint, the worker's role, and the time genuinely needed to protect the relationship. An intermediate appellate court once proposed a six-factor framework for this analysis — industry, employer characteristics, the history of the employment relationship, the protectable interest, the hardship on the worker, and the public effect — and trial courts often look to it, but the state's highest court resolved that very case on consideration grounds alone and never adopted the test, so treat the factors as a useful lens rather than a checklist that guarantees enforcement. S.2S.3

Every restraint has to guard something the employer is entitled to guard — trade secrets, confidential business information, or customer goodwill — not a general wish to keep a former employee out of the market. Kentucky's trade-secret act supplies the statutory leg: information qualifies when it derives independent economic value from secrecy and is the subject of reasonable secrecy efforts. Check that the covenant names its interest and that the interest is real, and keep trade-secret remedies running on their own statutory track alongside the contract — a non-solicit won by proving customer contact is often the more practical enforcement path than a misappropriation claim. S.4

If the employer is a health care services agency and the worker is temporary direct care staff, stop: the agreement must not restrict the worker's employment opportunities in any manner — non-compete clauses and contract buy-out provisions are both named — and a non-complying contract is an unfair trade practice and void. No reasonableness analysis rescues it; a covenant the statute voids is void no matter how measured it looks. Check the class carefully on both sides: the ban turns on the agency-and-temporary-staff relationship, not on a license or job title, and a 2023 amendment leaves the placement of permanent direct care staff outside it. S.5S.6