How COVID-19 is affecting courts' enforcement of restrictive covenants

In the best of economic times, some courts can be reluctant to grant immediate relief and bar an employee from working to enforce a postemployment restrictive covenant. Now that we're in the midst of a global pandemic and an economic recession, the challenge has grown. Current economic considerations are causing some courts to weigh the "balance of harms" on injunctive relief applications in favor of employees who are faced with the difficulty of finding other work in an economic downturn with high unemployment. Nevertheless, our review of recent decisions from around the country indicates the courts remain willing to consider requests for injunctions on an emergency basis to enforce restrictive covenants, particularly when there's a threat of trade secret misappropriation.

Courts remain willing to hear you out

In spite of the COVID-19 crisis, courts around the country generally remain willing to consider requests for injunctions in cases involving nonsolicitation, noncompetition, and trade secret misappropriation claims. Many courts are allowing ex parte (or "in the interests of only one side") temporary restraining order applications and temporary injunction hearings to proceed. Generally, the proceedings won't be in person (although some state and federal courts are beginning to allow limited in-person injunction proceedings), and the applications are decided either on the parties' written submissions or at the judge's discretion during a telephonic or video hearing.