Little Health Law Blog
Our healthcare and business law firm guides many medical practices and physicians through employment matters. A question we are often asked is “is the non-compete enforceable?” That question is never easy to answer, it depends on a mix of law, facts, and practical considerations. Generally speaking, under the Georgia Restrictive Covenant Act, non-competes are enforceable if they are reasonable as to duration, scope, and geographic area. The subject of this post focuses on the question of “scope.” Specifically, Georgia courts have made it clear that a non-compete is unreasonable and overbroad if it prevents an employee from providing “any services” to a competitor or working for a competitor “in any capacity.” This blog post further explains what courts find overbroad about this language. If you need assistance with employment matters or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.
In 2022, a District Court from the Southern District of Georgia reviewed a non-compete provision that prevented the employee from working “in any capacity” with a competitor. The District Court found the non-compete unreasonably broad and unenforceable, and stated:
As recently explained by the Georgia Court of Appeals, “[a]lthough O.C.G.A. § 13-8-56(3) states that ‘[t]he scope of competition restricted is measured by the business of the employer[,]’ covenants that do not list specific limits on the type of activity, and effectively bar former employees from working in any capacity for competitors, have been deemed overbroad and unreasonable.” Burbach v. Motorsports of Conyers, LLC, 363 Ga.App. 188, 871 S.E.2d 63, 66-67 (2022) (quoting Carson v. Obor Holding Co., LLC, 318 Ga.App. 645, 734 S.E.2d 477, 483 (2012)).
AmSpec, LLC v. Calhoun, 649 F.Supp.3d 1345 (S.D. Ga. 2022).
In 2025, the Georgia Court of Appeals reiterated this reasoning after reviewing a non-competition clause that stated the employee could not “directly or indirectly, alone or in association with any other person, firm, corporation or other business organization be employed by, perform services for, or otherwise associate with in any capacity (including without limitation, as investor, owner, lender, consultant, contractor, joint venturer or partner) with [sic] any person that is engaged in a business that is the same or substantially similar to or in competition with that of the ASAP Business.” All States AG Parts, LLC v. Herzig, (Ga. Ct. App. 2025) (emphasis in original). After analyzing the non-compete, the court stated: “[W]e have held that non-compete clauses that do not list specific limits on the type of activity, and effectively bar former employees from working in any capacity for competitors are unreasonable and overbroad.” All States AG Parts, LLC v. Herzig, (Ga. Ct. App. 2025) (quotations omitted).
These cases underline a key point for employers and employment lawyers to remember: more is not always better! Although it can be tempting to draft non-competes that broadly prevent an employee from working for a competitor, doing so can make the non-compete unenforceable. Although Georgia courts have the power to modify (or “blue pencil”) overbroad non-competes, such power is discretionary and rather limited.
If you need assistance with employment matters or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.