Chapter 34 - § 34.3 • BEST PRACTICES FOR A CONTINUOUSLY ENFORCEABLE AGREEMENT

• Jurisdiction: Colorado

§ 34.3 • BEST PRACTICES FOR A CONTINUOUSLY ENFORCEABLE AGREEMENT

Particularly for long-term arrangements, a noncompete, non-solicit, or confidentiality agreement should be treated as a living document and reviewed periodically. Ideally, the employee should review and re-execute an appropriately revised agreement on a regular basis. This will account for any changes in responsibility, promotions, or exposure to new sources of confidential information. At the very least, an employee should sign a new agreement with each new promotion or change in responsibility.

Ongoing employee education may also be beneficial. For example, programs reminding employees of the confidential nature of the information they are handling, processes for keeping the information confidential, and any restrictions on dissemination of confidential information will raise employee awareness. Further relating these matters to an employee's existing non-solicitation, noncompete and confidentiality agreements highlights the importance of compliance both during and after employment.

Although continued employment of an at-will employee is sufficient consideration, Lucht's Concrete Pumping, Inc. v. Horner, 255 P.3d 1058 (Colo. 2011), in certain cases, providing additional consideration in return for an agreement not to compete or solicit may enhance enforcement of the agreement. Such consideration could come in the form of a year-end bonus tied to an employee's reaffirmation of his or her contractual...