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Parties and cover-term identification
Review every item below the way a Wisconsin court would: Wis. Stat. § 103.465 enforces a covenant only when its restrictions are reasonably necessary to protect the employer, and a covenant that reaches too far on any single point is void in full — there is no judicial trimming to fall back on. For the question-by-question legal analysis behind these items, see the Wisconsin non-compete practice note.
Confirm who the covenant runs to. The statute governs a covenant by an assistant, servant or agent in favor of the employer or principal, so the named employer should be the entity the worker actually serves — a covenant held by some other entity invites a threshold fight over which legal framework even applies.
The signing and effective dates anchor every later clock: the restricted period has to be a definite, knowable stretch of time, and the consideration analysis for a covenant signed mid-employment turns on what moved when. An undated covenant starts the review with two open questions.
Title and duties are the first evidence on the first factor: the employer must have a protectable interest justifying a restraint on this particular worker. A form covenant pinned to a role with no access to secrets or customer relationships starts the reasonableness test already behind.
Check that a governing state is named — and treat an out-of-state choice covering Wisconsin work as a warning sign rather than a fix, because Wisconsin courts have refused to enforce a choice-of-law clause that conflicts with the state's policy controlling covenants not to compete.
Sources for this answer
Primary law
A.1 Wis. Stat. § 103.465Wis. Stat. § 103.465 governs covenants by an assistant, servant or agent in favor of the employer or principal, and conditions enforceability on the restrictions being reasonably necessary for the employer's protection.
A covenant by an assistant, servant or agent not to compete with his or her employer or principal during the term of the employment or agency, or after the termination of that employment or agency, within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal.
See Wis. Stat. § 103.465.
Case law · 2009-07-14
A.2 Star Direct, Inc. v. Dal PraStar Direct supports the first prerequisite — a protectable interest justifying the restriction imposed on the employee — which the worker's role and duties evidence.
A restrictive covenant must: (1) be necessary for the protection of the employer, that is, the employer must have a protectable interest justifying the restriction imposed on the activity of the employee; (2) provide a reasonable time limit; (3) provide a reasonable territorial limit; (4) not be harsh or oppressive as to the employee; and (5) not be contrary to public policy.
See Star Direct, Inc. v. Dal Pra, 2009 WI 76, 319 Wis. 2d 274, 767 N.W.2d 898.
Case law · 2004-05-12
A.3 Beilfuss v. Huffy Corp.Beilfuss supports flagging an out-of-state choice-of-law clause: the court held such a provision unenforceable where it conflicted with Wisconsin's public policy controlling covenants not to compete.
We hold the choice of law provision is unenforceable because it violates Wisconsin's long-standing public policy controlling covenants not to compete, in that Wisconsin does not permit severability as a matter of public policy, while Ohio does.
See Beilfuss v. Huffy Corp., 2004 WI App 118.
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Definitions
Read the definition the way a motion to dismiss would: a confidentiality covenant that sweeps in ordinary, non-secret business information is itself a restraint subject to § 103.465 and can be held unenforceable before any evidence is heard. Scope it to material that is genuinely secret or competitively sensitive.
Track the statutory definition: information with independent economic value from not being generally known, kept secret by reasonable efforts. A definition that mirrors Wis. Stat. § 134.90 anchors the employer's most durable protection — one that does not depend on any covenant surviving the reasonableness test.
The period must read as a fixed and definite stretch of time. A definition that lets the duration float on events the employee cannot predict — breach, litigation, renewals — reproduces the exact indefiniteness that voided the covenant in the leading extension case.
A reasonable territorial limit is one of the five prerequisites, so the geography needs a defensible tie to where the worker actually operated or where the protected interest lives. An everywhere-the-company-does-business territory is a bet the court will not take — and there is no partial credit, because an unreasonable restraint is void even as to the part that would have been reasonable.
Bound the class to customers the worker actually served or learned protected information about during a stated look-back window. The covenant is measured as written, not as the employer would enforce it in practice, so a book-of-business definition reaching strangers to the worker puts every customer restriction at risk at once.
Keep the no-poach class to colleagues the departing worker actually worked with or supervised. The state supreme court struck a clause covering every company employee as overbroad on its face, and an overbroad class does not shrink to a lawful one here.
Name the specific interests each covenant protects — the customer relationships this worker controlled, the genuine trade secrets this role touched. The first prerequisite demands a protectable interest justifying the restriction imposed on the employee, and this definition is where that justification either shows up or does not.
Describe the competing activity concretely. A definition that swells to anything the employer might someday do reads as a restraint on working rather than a shield for a protectable interest, and no Wisconsin court will cut it down to size for the drafter.
Where the agreement restricts owning or investing in competitors, look for a passive-holdings carve-out below a stated percentage. A clause that technically forbids holding ordinary public shares restricts the worker far beyond any protectable interest and feeds the harsh-or-oppressive factor of the reasonableness test.
Optional drafting mechanics — many agreements inline the carve-out language without a capitalized term. If the term appears, confirm its percentage matches the operative carve-out it supports.
Pin the verb to initiating contact. A definition that also captures passively receiving an inquiry widens the restraint that the reasonableness factors measure, and breadth added here is breadth the covenant must justify everywhere else.
Verify the trigger treats resignation, dismissal, and the end of a fixed term the same way. The restricted period and every survival clock run from this event; ambiguity about who ended the relationship becomes ambiguity about when the restraint expires.
Sources for this answer
Case law · 2022-07-14
B.1 Diamond Assets LLC v. GodinaDiamond Assets supports scoping the confidential-information definition tightly: an overbroad confidentiality covenant subject to Wis. Stat. § 103.465 was held unenforceable on a motion to dismiss, regardless of later evidence.
As to the confidentiality covenant, we agree with Godina that it is properly subject to a motion to dismiss as unenforceable, regardless of the evidence Diamond might be able to submit.
See Diamond Assets LLC v. Godina, 2022 WI App 47.
Primary law
B.2 Wis. Stat. § 134.90Wis. Stat. § 134.90 defines a trade secret as information deriving independent economic value from not being generally known and subject to reasonable secrecy efforts — the definition a contractual trade-secret term should track.
"Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique or process to which all of the following apply: 1. The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. 2. The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.
See Wis. Stat. § 134.90(1)(c).
Case law · 2007-12-20
B.3 H&R Block Eastern Enters., Inc. v. SwensonH&R Block v. Swenson supports requiring a fixed and definite restricted period: a duration contingent on outcomes the employee cannot predict made the restraint unreasonable.
The effect of the extension provision thus makes the duration of the restraint not a fixed and definite time period but a time period that is contingent upon outcomes the employee cannot predict.
See H&R Block Eastern Enters., Inc. v. Swenson, 2008 WI App 3.
Case law · 2009-07-14
B.4 Star Direct, Inc. v. Dal PraStar Direct states the five prerequisites — including the reasonable territorial limit, the protectable-interest requirement, and the harsh-or-oppressive factor — that the defined terms feed.
A restrictive covenant must: (1) be necessary for the protection of the employer, that is, the employer must have a protectable interest justifying the restriction imposed on the activity of the employee; (2) provide a reasonable time limit; (3) provide a reasonable territorial limit; (4) not be harsh or oppressive as to the employee; and (5) not be contrary to public policy.
See Star Direct, Inc. v. Dal Pra, 2009 WI 76, 319 Wis. 2d 274, 767 N.W.2d 898.
Primary law
B.5 Wis. Stat. § 103.465Wis. Stat. § 103.465 voids an unreasonable restraint even as to any part that would have been reasonable, so an overbroad defined term endangers the whole covenant it feeds.
Any covenant, described in this section, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint.
See Wis. Stat. § 103.465.
Case law · 2018-01-19
B.6 Manitowoc Co. v. LanningLanning supports keeping the covered-employees class narrow: a non-solicitation provision reaching any company employee was overbroad on its face under Wis. Stat. § 103.465.
In applying the prerequisites that must be met under Wis. Stat. § 103.465, we conclude, as did the court of appeals, that the non-solicitation of employees provision is overbroad on its face.
See Manitowoc Co. v. Lanning, 2018 WI 6.
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Timing and execution acknowledgements
For a covenant signed mid-employment, Wisconsin accepts the employer's forbearance from firing an at-will employee as lawful consideration — but the holding assumes the forbearance is genuine, and a sign-then-fire sequence invites a bad-faith fight. The acknowledgement should record when the covenant was signed and what the worker received; pairing the signature with tangible new value remains the safer course.
Worth keeping even though no Wisconsin statute requires it. The worker's leverage at signing is limited — an at-will employee fired for refusing to sign has no wrongful-discharge claim — so a documented chance to take advice is useful evidence that the covenant was not harsh or oppressive in how it was obtained.
Sources for this answer
Case law · 2015-04-30
C.1 Runzheimer Int'l, Ltd. v. FriedlenRunzheimer holds that an employer's forbearance in exercising its right to terminate an at-will employee is lawful consideration for signing a restrictive covenant.
We hold that an employer's forbearance in exercising its right to terminate an at-will employee constitutes lawful consideration for signing a restrictive covenant.
See Runzheimer Int'l, Ltd. v. Friedlen, 2015 WI 45.
Case law · 1998-06-19
C.2 Tatge v. Chambers & Owen, Inc.Tatge holds that an at-will employee terminated for refusing to sign a non-disclosure/non-compete agreement cannot maintain a wrongful-discharge claim — context for why procedural-fairness evidence at signing matters.
We also hold that a contract cause of action for wrongful discharge may not be maintained under Brockmeyer where an at-will employee is terminated for failing to sign a non-disclosure/non-compete agreement.
See Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 579 N.W.2d 217 (1998).
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Confidentiality and trade-secret treatment
Trade-secret obligations should run as long as secrecy does — that is how the federal definition works, and Wisconsin's own trade-secret act keys protection to continued secrecy in the same way. A fixed expiry on trade-secret protection gives away the one obligation that never needed a covenant to survive.
Give ordinary confidential information its own finite term. A perpetual lid on non-secret information is precisely the breadth that converts a confidentiality clause into a restraint judged under § 103.465 — and one such covenant was held unenforceable at the pleadings stage.
Sources for this answer
Primary law
D.1 Defend Trade Secrets Act — definition of a trade secret, 18 U.S.C. § 1839Federal law keys trade-secret status to continued secrecy, which is why contractual trade-secret protection should run as long as secrecy does rather than to a fixed date.
the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information
See 18 U.S.C. § 1839(3)(B) (2018).
Case law · 2022-07-14
D.2 Diamond Assets LLC v. GodinaDiamond Assets supports a finite term for non-secret confidential information: an overbroad confidentiality covenant was held unenforceable under Wis. Stat. § 103.465 on a motion to dismiss.
As to the confidentiality covenant, we agree with Godina that it is properly subject to a motion to dismiss as unenforceable, regardless of the evidence Diamond might be able to submit.
See Diamond Assets LLC v. Godina, 2022 WI App 47.
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Permitted disclosures and protected conduct
Federal and non-negotiable: omit the immunity notice and the employer forfeits exemplary damages and attorney fees in a later trade-secret action against the worker. For employers that Wisconsin's covenant rules push toward trade-secret protection, those remedies carry real weight.
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.
Confirm the carve-out for disclosure required by law, court order, or a government investigation, with notice to the employer where lawful. A clause purporting to forbid compelled disclosure is unenforceable on that point and adds overbreadth a Wisconsin covenant cannot afford to carry.
Sources for this answer
Primary law
E.1 Defend Trade Secrets Act — employer immunity-notice requirement, 18 U.S.C. § 1833(b)The DTSA requires an employer to give notice of the trade-secret whistleblower immunity in any agreement governing the use of trade secrets or other confidential information.
An employer shall provide notice of the immunity set forth in this subsection in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.
See 18 U.S.C. § 1833(b)(3)(A) (2018).
Primary law
E.2 NLRA Section 7 — protected concerted activity, 29 U.S.C. § 157Section 7 protects concerted activity including wage discussion — the statutory basis for the carve-out from confidentiality and non-disparagement restrictions.
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection
See 29 U.S.C. § 157 (NLRA § 7).
Agency guidance · 2023-02-21
E.3 NLRB news release on McLaren Macomb, 372 NLRB No. 58 (2023)The NLRB held that offering severance terms that broadly waive Section 7 rights — including overbroad confidentiality and non-disparagement terms — violates the NLRA.
simply offering employees a severance agreement that requires them to broadly give up their rights under Section 7 of the Act violates Section 8(a)(1) of the Act.
See McLaren Macomb, 372 NLRB No. 58 (2023); NLRB Office of Public Affairs (Feb. 21, 2023).
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Property return and certification
Return-or-delete at separation, certified in writing. Wisconsin's trade-secret act protects only information kept secret by efforts that are reasonable under the circumstances, and a clean exit procedure with a signed certification is some of the best evidence those efforts were real.
Sources for this answer
Primary law
F.1 Wis. Stat. § 134.90Wis. Stat. § 134.90 conditions trade-secret status on reasonable efforts to maintain secrecy, which exit procedures and return certifications evidence.
"Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique or process to which all of the following apply: 1. The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. 2. The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.
See Wis. Stat. § 134.90(1)(c).
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Restrictive covenants (each independently includable)
Optional — and not a soft target here: the state supreme court holds that an employee non-solicitation provision is a restraint of trade governed by § 103.465, so the clause faces the same reasonableness test and the same all-or-nothing consequence as a non-compete. Keep it confined to the Covered Employees class and a definite period, then route it through the Wisconsin gates at the end of this checklist.
Optional, and judged under the statute like every other post-employment restraint: lawful only if its restrictions are reasonably necessary to protect the employer. Tailored to customers the worker actually served, it is usually the easiest covenant in the suite to defend; inflated to the whole customer base, it is void with no rescue available.
Barring the worker from serving covered customers even when the customer makes the first call restrains accepting work, not just chasing it. That extra breadth weighs directly on the harsh-or-oppressive factor, so treat inclusion as a deliberate risk decision and insist on a tight customer class.
A Wisconsin non-compete is enforceable only when its restrictions are reasonably necessary to protect the employer, and a miss on any single factor voids it entirely. If the clause appears, review it as a package — interest, time, territory, hardship, public policy — and then confirm nothing inside it, like an extension clause or a catch-all definition, triggers the void rules elsewhere on this page.
When the employer can name its real competitors, bind those names instead of leaning on an open-ended definition. Narrowing decisions made at the drafting table are the only narrowing this covenant will ever get — the statute forbids a court from supplying them later.
Rare and deliberate. Confirm the passive-holdings carve-out is intact and the clause shares the defined Restricted Period; an investment restraint with indefinite reach adds exactly the harshness the reasonableness factors count against the whole covenant.
Sources for this answer
Case law · 2018-01-19
G.1 Manitowoc Co. v. LanningLanning held that an employee non-solicitation provision is a restraint of trade governed by Wis. Stat. § 103.465, subjecting it to the same reasonableness test as a non-compete.
Accordingly, we conclude that Lanning's non-solicitation of employees provision is a restraint of trade governed by Wis. Stat. § 103.465.
See Manitowoc Co. v. Lanning, 2018 WI 6.
Primary law
G.2 Wis. Stat. § 103.465Wis. Stat. § 103.465 makes a restrictive covenant lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal.
A covenant by an assistant, servant or agent not to compete with his or her employer or principal during the term of the employment or agency, or after the termination of that employment or agency, within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal.
See Wis. Stat. § 103.465.
Primary law
G.4 Wis. Stat. § 103.465Wis. Stat. § 103.465 voids an unreasonable restraint even as to any part that would have been reasonable, which is why narrowing must happen at drafting.
Any covenant, described in this section, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint.
See Wis. Stat. § 103.465.
Case law · 2009-07-14
G.3 Star Direct, Inc. v. Dal PraStar Direct's prerequisites include that a restraint not be harsh or oppressive as to the employee — the factor a non-dealing covenant's extra breadth presses on.
A restrictive covenant must: (1) be necessary for the protection of the employer, that is, the employer must have a protectable interest justifying the restriction imposed on the activity of the employee; (2) provide a reasonable time limit; (3) provide a reasonable territorial limit; (4) not be harsh or oppressive as to the employee; and (5) not be contrary to public policy.
See Star Direct, Inc. v. Dal Pra, 2009 WI 76, 319 Wis. 2d 274, 767 N.W.2d 898.
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Non-disparagement
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.
Sources for this answer
Agency guidance · 2023-02-21
H.1 NLRB news release on McLaren Macomb, 372 NLRB No. 58 (2023)The NLRB held that severance terms broadly waiving Section 7 rights — including overbroad non-disparagement provisions — violate the NLRA.
simply offering employees a severance agreement that requires them to broadly give up their rights under Section 7 of the Act violates Section 8(a)(1) of the Act.
See McLaren Macomb, 372 NLRB No. 58 (2023); NLRB Office of Public Affairs (Feb. 21, 2023).
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Physician-specific notices and carve-outs
Wisconsin currently has no statute carving physicians out of covenant law: bills restricting medical-practitioner covenants were introduced in the 2025-26 session and failed to pass. Clinician covenants therefore face the ordinary five-factor reasonableness test, where patient access can weigh into the public-policy factor — so the dedicated clause should state the agreement's actual treatment of practitioners rather than imply a statutory carve-out that does not exist, and the failed bills are worth tracking for reintroduction.
Sources for this answer
Primary law
I.1 2025 Wisconsin Assembly Bill 6752025 Assembly Bill 675 would have restricted non-compete covenants for medical practitioners; it failed to pass at the end of the 2025-26 session, leaving no physician-specific Wisconsin rule.
This bill makes changes regarding covenants not to compete for advanced practice registered nurses, advanced practice nurse prescribers, physicians, physician assistants, and psychologists ("medical practitioners").
See 2025 Wisconsin Assembly Bill 675 (failed to pass, Mar. 23, 2026).
Primary law
I.2 2025 Wisconsin Senate Bill 6572025 Senate Bill 657, the Senate companion to AB 675, would have voided medical-practitioner non-competes restricting practice beyond 24 consecutive months; it failed to pass at the end of the 2025-26 session.
The bill provides that a covenant by a medical practitioner not to compete with his or her employer after the termination of the employment imposes an unreasonable restraint and is illegal, void, and unenforceable if the covenant includes a restriction that prohibits working as a medical practitioner for more than 24 consecutive months after the first day of the medical practitioner's employment with the employer that is imposing the covenant not to compete.
See 2025 Wisconsin Senate Bill 657 (failed to pass, Mar. 23, 2026).
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No conflicting obligations
The worker's representation that no earlier agreement or order blocks the new role. On intake it cuts both ways: an incoming covenant signed elsewhere may be void here for overbreadth or an unlawful extension clause, while a covenant that survives review is a genuine hazard for the hiring employer — better to surface either before the first customer call.
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Notice to future employers and other third parties
A drafting choice with teeth on both sides: a competitor that knowingly induces breach of an enforceable covenant can face an interference claim with disgorgement of profits on the table, which is what gives notice letters their force. But a letter asserting a covenant that fails the reasonableness test overstates the employer's rights, so condition any notice practice on a covenant that actually survives review.
Sources for this answer
Case law · 2024-12-17
K.1 Frey Construction & Home Improvement, LLC v. Hasheider Roofing & Siding, Ltd.Frey Construction held that disgorgement may be an appropriate remedy for an intentional interference with contract claim involving an employee non-compete.
However, we further conclude that disgorgement may be an appropriate remedy for an intentional interference with contract claim.
See Frey Construction & Home Improvement, LLC v. Hasheider Roofing & Siding, Ltd., 2025 WI App 4.
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Tolling during breach
Strike any language extending the restricted period by time the worker spent in violation. The court of appeals held that such an extension makes the duration contingent on outcomes the employee cannot predict rather than fixed and definite, and it voided each affected clause even where the clause was otherwise reasonable. A pending-litigation tolling clause is untested here and carries the same indefiniteness risk — and no court will sever the offending sentence to save the rest of the covenant.
Sources for this answer
Case law · 2007-12-20
L.1 H&R Block Eastern Enters., Inc. v. SwensonH&R Block v. Swenson held that a clause extending the restricted period by any period of violation made the duration of the restraint indefinite rather than fixed and definite.
The effect of the extension provision thus makes the duration of the restraint not a fixed and definite time period but a time period that is contingent upon outcomes the employee cannot predict.
See H&R Block Eastern Enters., Inc. v. Swenson, 2008 WI App 3.
Case law · 2007-12-20
L.2 H&R Block Eastern Enters., Inc. v. SwensonH&R Block v. Swenson held that because the extension provision made the restraint unreasonable, each clause was void and unenforceable even if otherwise reasonable.
Because this restraint in each clause is unreasonable, each clause is void and unenforceable even if each is otherwise reasonable.
See H&R Block Eastern Enters., Inc. v. Swenson, 2008 WI App 3.
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Remedies
The irreparable-harm acknowledgement is standard and harmless — but it buys nothing on its own, because an injunction can issue only on a covenant that first clears every one of the five statutory prerequisites. A void restraint supports no relief at any stage.
A commercial choice the statute then frames: Wisconsin presumes a contractual fee agreement is reasonable, and where compensatory damages are awarded it presumes reasonable fees do not exceed three times that amount unless the court finds more is warranted after weighing the statutory factors. Covenant fees routinely outrun covenant damages, so check that any fee clause is mutual and price the presumption into enforcement decisions.
Sources for this answer
Case law · 2009-07-14
M.1 Star Direct, Inc. v. Dal PraStar Direct's five prerequisites are the threshold every enforcement effort must clear before any remedy — including an injunction — is available.
A restrictive covenant must: (1) be necessary for the protection of the employer, that is, the employer must have a protectable interest justifying the restriction imposed on the activity of the employee; (2) provide a reasonable time limit; (3) provide a reasonable territorial limit; (4) not be harsh or oppressive as to the employee; and (5) not be contrary to public policy.
See Star Direct, Inc. v. Dal Pra, 2009 WI 76, 319 Wis. 2d 274, 767 N.W.2d 898.
Primary law
M.2 Wis. Stat. § 814.045Wis. Stat. § 814.045(3) preserves the parties' right to agree on attorney fees and presumes such an agreement is reasonable.
This section does not abrogate the rights of persons to enter into an agreement for attorney fees, and the court shall presume that such an agreement is reasonable.
See Wis. Stat. § 814.045(3).
Primary law
M.3 Wis. Stat. § 814.045Wis. Stat. § 814.045(2)(a) presumes that reasonable attorney fees do not exceed three times the compensatory damages awarded, rebuttable after weighing the statutory reasonableness factors.
In any action in which compensatory damages are awarded, the court shall presume that reasonable attorney fees do not exceed 3 times the amount of the compensatory damages awarded but this presumption may be overcome if the court determines, after considering the factors set forth in sub. (1) , that a greater amount is reasonable.
See Wis. Stat. § 814.045(2)(a).
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Severability and reformation
Read the severability boilerplate against what the statute allows. A savings or court-may-modify clause is a dead letter here: the statute voids an unreasonable restraint even as to the part that would have been reasonable, and a modification provision contrary to it has no effect. The protection that does work is structural — draft each restraint as a separate covenant supporting its own interest, independently readable and enforceable, so the court that voids the most aggressive clause leaves the others standing.
Sources for this answer
Primary law
N.1 Wis. Stat. § 103.465Wis. Stat. § 103.465 voids an unreasonable restraint even as to any part that would have been a reasonable restraint, barring judicial blue-penciling.
Any covenant, described in this section, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint.
See Wis. Stat. § 103.465.
Case law · 2022-07-14
N.2 Diamond Assets LLC v. GodinaDiamond Assets held that a contractual modification provision contrary to Wis. Stat. § 103.465 has no effect and cannot save an overbroad covenant.
Given that the modification provision is contrary to WIS. STAT. § 103.465, it could have no effect here.
See Diamond Assets LLC v. Godina, 2022 WI App 47.
Case law · 2009-07-14
N.3 Star Direct, Inc. v. Dal PraStar Direct holds that separate covenants supporting different interests that can be independently read and enforced are divisible — the structural mitigation Wisconsin permits.
Restrictive covenants are divisible when the contract contains different covenants supporting different interests that can be independently read and enforced.
See Star Direct, Inc. v. Dal Pra, 2009 WI 76, 319 Wis. 2d 274, 767 N.W.2d 898.
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Survival
Per-covenant survival is the divisibility principle carried into the boilerplate: each restraint should expire on its own definite schedule and be readable on its own. A bundled survival clause that entangles the covenants undercuts the very separateness that lets a valid clause outlive an invalid neighbor.
Sources for this answer
Case law · 2009-07-14
O.1 Star Direct, Inc. v. Dal PraStar Direct's divisibility rule — independently readable and enforceable covenants survive a neighbor's invalidity — is what per-covenant survival drafting preserves.
Restrictive covenants are divisible when the contract contains different covenants supporting different interests that can be independently read and enforced.
See Star Direct, Inc. v. Dal Pra, 2009 WI 76, 319 Wis. 2d 274, 767 N.W.2d 898.
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Assignment and successors
Confirm the employer can assign to successors and the worker cannot. Whoever inherits the covenant inherits its Wisconsin posture with it — the same reasonableness test and the same void-in-full consequence — so an assignment clause moves the covenant without improving it.
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Governing law, venue, dispute process
Do not bank on a foreign choice-of-law clause to import friendlier covenant rules into Wisconsin employment: the court of appeals refused to apply another state's severability rule precisely because Wisconsin's policy against saving overbroad covenants is fundamental, and the supreme court's choice-of-law framework treats covenant-restricting laws as the kind of policy that overrides the parties' stipulation. The clause should still name governing law, venue, and process — for Wisconsin work, Wisconsin law plus drafting that survives the statute is the combination that operates as written.
Sources for this answer
Case law · 2004-05-12
Q.1 Beilfuss v. Huffy Corp.Beilfuss held a choice-of-law provision unenforceable because applying Ohio severability law would violate Wisconsin's public policy controlling covenants not to compete.
We hold the choice of law provision is unenforceable because it violates Wisconsin's long-standing public policy controlling covenants not to compete, in that Wisconsin does not permit severability as a matter of public policy, while Ohio does.
See Beilfuss v. Huffy Corp., 2004 WI App 118.
Case law · 1987-06-25
Q.2 Bush v. National School Studios, Inc.Bush identified laws prohibiting covenants not to compete as an example of an important state public policy that can override a contractual choice-of-law stipulation.
In general, however, statutes or common law which make a particular type of contract enforceable, e.g., usury laws, or which make a particular contract provision unenforceable, e.g., laws prohibiting covenants not to compete, or that are designed to protect a weaker party against the unfair exercise of superior bargaining power by another party, are likely to embody an important state public policy.
See Bush v. National School Studios, Inc., 139 Wis. 2d 635 (1987).
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Entire agreement, amendment, waiver, e-signatures
Standard boilerplate with one local wrinkle: a later amendment that re-papers a covenant mid-employment needs its own consideration moment — genuine forbearance from termination or tangible new value — and the amendment mechanics should leave a record of what moved and when.
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Wisconsin statutory gates (Wis. Stat. § 103.465)
The five items below exist only on this Wisconsin page: they implement the statute's reasonableness gate and the case-law rules — the employee non-solicit class limit, the confidentiality scoping rule, the sale-of-business framework line, and the lawyer bar — that have no analogue in the jurisdiction-neutral checklist.
Run every post-employment restraint through all five prerequisites: a protectable interest justifying this restriction, a reasonable time limit, a reasonable territory, no harshness or oppression toward the worker, and no conflict with public policy. The statute makes the covenant lawful only if its restrictions are reasonably necessary to protect the employer, and one failed factor voids the restraint in full — so score each covenant on each factor, in writing, before relying on any of them.
The no-poach clause must not reach the entire workforce. The state supreme court treated an employee non-solicitation provision as a restraint governed by the statute and held a clause covering every company employee overbroad on its face — so restrict the class to colleagues the departing worker actually worked with, supervised, or gained material information about, inside a stated look-back window.
The confidentiality covenant should not double as a catch-all gag on everything the worker learned. Drafted that broadly, it becomes a restraint judged under the statute — and a court held one unenforceable on a motion to dismiss, before any evidence was heard. Scope it to trade secrets and genuinely competitively sensitive information, and let the trade-secret act carry the rest.
When the covenant rides a genuine business sale or equity transaction, paper it in the transaction documents — given by the seller, supported by deal consideration, separable from any employment terms. Covenants outside the employment relationship are judged under the common-law rule of reason, which permits partial enforcement of an overlong restraint, while an employee covenant is locked into the statute's all-or-nothing rule; the substance of the relationship, not the caption on the document, selects the framework.
No restriction on a licensed lawyer's right to practice after the relationship ends: the supreme court rules bar a lawyer from participating in offering or making such an agreement, excepting only retirement-benefit terms and restrictions that are part of settling a client controversy. The bar reaches the firm or employer offering the clause as well as the lawyer signing it, and no reasonableness showing cures it.
Sources for this answer
Primary law
S.1 Wis. Stat. § 103.465Wis. Stat. § 103.465 makes a restrictive covenant lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal.
A covenant by an assistant, servant or agent not to compete with his or her employer or principal during the term of the employment or agency, or after the termination of that employment or agency, within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal.
See Wis. Stat. § 103.465.
Case law · 2009-07-14
S.2 Star Direct, Inc. v. Dal PraStar Direct states the five prerequisites a restrictive covenant must satisfy to be enforceable under Wis. Stat. § 103.465.
A restrictive covenant must: (1) be necessary for the protection of the employer, that is, the employer must have a protectable interest justifying the restriction imposed on the activity of the employee; (2) provide a reasonable time limit; (3) provide a reasonable territorial limit; (4) not be harsh or oppressive as to the employee; and (5) not be contrary to public policy.
See Star Direct, Inc. v. Dal Pra, 2009 WI 76, 319 Wis. 2d 274, 767 N.W.2d 898.
Case law · 2018-01-19
S.3 Manitowoc Co. v. LanningLanning held that an employee non-solicitation provision is a restraint of trade governed by Wis. Stat. § 103.465.
Accordingly, we conclude that Lanning's non-solicitation of employees provision is a restraint of trade governed by Wis. Stat. § 103.465.
See Manitowoc Co. v. Lanning, 2018 WI 6.
Case law · 2018-01-19
S.4 Manitowoc Co. v. LanningLanning concluded that a non-solicitation provision barring solicitation of any employee was overbroad on its face and unenforceable under Wis. Stat. § 103.465.
In applying the prerequisites that must be met under Wis. Stat. § 103.465, we conclude, as did the court of appeals, that the non-solicitation of employees provision is overbroad on its face.
See Manitowoc Co. v. Lanning, 2018 WI 6.
Case law · 2022-07-14
S.5 Diamond Assets LLC v. GodinaDiamond Assets held that an overbroad confidentiality covenant subject to Wis. Stat. § 103.465 was unenforceable on a motion to dismiss, regardless of later evidence.
As to the confidentiality covenant, we agree with Godina that it is properly subject to a motion to dismiss as unenforceable, regardless of the evidence Diamond might be able to submit.
See Diamond Assets LLC v. Godina, 2022 WI App 47.
Case law · 1981-04-27
S.6 Reiman Assocs., Inc. v. R/A Advertising, Inc.Reiman held that covenants incidental to the sale of a business benefit from the rule of partial enforcement, under which even an unreasonable restraint is enforced to the extent reasonable.
Additionally, covenants incidental to the sale of a business benefit from full application of the rule of partial enforcement: even an unreasonable restraint will be enforced to the extent necessary and reasonable under the circumstances.
See Reiman Assocs., Inc. v. R/A Advertising, Inc., 102 Wis. 2d 305 (Ct. App. 1981).
Case law · 2010-07-13
S.7 Selmer Co. v. RinnSelmer held that a covenant outside the employment relationship is evaluated under the common law's rule of reason rather than Wis. Stat. § 103.465.
Having determined Wis. Stat. § 103.465 does not apply, we must determine whether the covenant not to compete satisfies the common law's rule of reason.
See Selmer Co. v. Rinn, 2010 WI App 106.
Primary law
S.8 Wis. SCR 20:5.6PDFSCR 20:5.6 bars a lawyer from participating in an agreement that restricts the lawyer's right to practice after termination of the relationship, except an agreement concerning retirement benefits or a settlement of a client controversy.
A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or (b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
See Wis. SCR 20:5.6.