Majority or most......why are you caught in the semantics? If you have nothing to add to the conversation besides argumentative statements, please exercise your right to remain silence. California, Virginia, Florida, Massachusetts, and Washington are the only states that have had adverse court decisions. Noncompetes are void in California except for very very limited circumstances (yet they still appear in contracts). They are allowed in the other states that I mentioned, however, you have to do a better job in demonstrating that the agreement is reasonable, not harshly oppressive, and not against public policy. In all other states noncompetes have been upheld in court if simple principles are adhered to in drafting. Why do I know this? Because I do extensive contract review. In summary, California is the only state where noncompetes are void. I feel that this constitues the use of the word MOST (ie 49 of 50 states). Remember, ampabhb, you do have the right the remain silent.
Delaware, Massachusetts, Floirda and Colorado have enacted statutes specifically invalidating restrictive covenants in physician employment contracts (Colorado R.S. 8-2-113(3)., Delaware 6 Del Code §2707., Florida §542.18 (2), Massachusetts G.L.c. 112 §12X.). I know that Alabama, California, Montana, and North and South Dakota have near absolute bans (Alabama §8-1-1., California §16602 Bus & Prof., Montana 28-2-703 to 705., North Dakota 9-08-06.), and Tennessee has a Supreme Court opinion banning restrictive covenants in most physician contracts (Murfreesboro Medical Clinic, P.A. v. Udom, 166 S.W.3d 674 (Tenn. 2005)). You have also mentioned Virginia, Florirda, and Washington, although I couldn't find the specific decisions in those localities
Though Florida and Louisiana's antitrust statues do not specifically address physician restrictive covenants, they prohibit the use pf non-compete agreements among professions, including physicians (Paula Berg, Judicial Enforcement of Covenants-not-to-compete Between Physicians: Protecting Doctors' Interests at Patients' Expense, 45 RUTGERS L. REV. 1 (1992).).
Courts in the remaining states use the "rule of reason" to decide whether to uphold post-contractual restrictive covenants. These courts reason that a party to a contract may compromise its legal rights under certain circumstances. These courts balance the public interest against the parties' freedom to contract. Thus, even though a physician signs a contract which includes a restrictive covenant, courts may decide to not enforce the restrictive covenant.
Many states will not enforce physician non-compete agreements where they are viewed as restricting patients' rights to choose their own doctor. Even where the non-compete agreement is otherwise enforceable, in many instances courts will construe the restriction so as not to prohibit patients from independently seeking out treatment by the departing physician. Moreover, states often draw a distinction between restrictions on the right to practice medicine and restrictions on owning or operating a business, which do not raise the same policy concerns about patient care. For example, a non-compete agreement could be drafted explicitly to preserve the physician's right to see patients, but to restrict the physician from owning or operating a practice similar to that of the employer.
In states that use the "rule of reason," courts enforce restrictive covenants if the employer/ contract-holder has legitimate business interests, and the time and territorial restrictions are reasonable, and no greater than required for protection of the employer/contract-holder. How much time is reasonable? A restrictive covenant may apply only long enough to allow the employer a reasonable amount of time to overcome the loss (i.e., to recruit and train another physician).(See, e.g.: Valley Medical Specialists v. Farber, 982 P.2d 1277 (Ariz. 1999)) Therefore, if an employer/contract-holder replaces a physician within two weeks, then the duration of the restrictive covenant cannot reasonably extend beyond that time.
Courts may strike down restrictive covenants for a number of other reasons, including the creation of a monopoly (Statesville Medical Group v. Dickey, 424 S.E.2d 922 (N.C. Ct. App. 1992), Iredell Digestive Disease Clinic v. Petrozza, 373 S.E.2d 449 (N.C. Ct. App. 1988).), illegal restraint of trade (Duneland Emergency Physicians' Medical Group v. Brunk, 723 N.E.2d 963 (Ind. Ct. App. 2000)) and a general violation of the public interest (Murfreesboro Medical Clinic, P.A. v. Udom, 166 S.W.3d 674 (Tenn. 2005)).
Arkansas, Georgia, Nebraska, Wisconsin, follow an "all or none" rule, taking a strict no modification approach. Courts may not re-write overbroad provisions, and are obligated to strike them down in their entirety.
My basic point is that this is a moving target, and any overly broad pronouncement about enforceability is likely inaccurate. You need to check what the CURRENT law is in your state, and what court rulings apply to your particular set of circumstances.
