Legal Question in Employment Law in South Dakota
Covenant not to compete
I am basically interested to know if non-compete clauses are upheld by the state of South Dakota. My particular non-compete is for the term of 3 years and for the consideration of 5,000 dollars per year (which is included in my yearly salary). In my research I have not found and specific reference to non-compete clauses. I have been advised however that South Dakota does not recognise anything over 2 years. I should also tell you my salary is 35,000 per year. Thank You for your time.
1 Answer from Attorneys
Re: Covenant not to compete
Based on the facts you have presented, it is my opinion that the agreement is not enforceable past two years. The court can modify it to comport with the statute. The statute is noted below:
SDCL 53-9-11. Employment contract - Covenants not to compete.
An employee may agree with an employer at the time of employment or at any time during his employment not to engage directly or indirectly in the same business or profession as that of his employer for any period not exceeding two years from the date of termination of the agreement and not to solicit existing customers of the employer within a specified county, city or other specified area for any period not exceeding two years from the date of termination of the agreement, if the employer continues to carry on a like business therein.
Without seeing the non-compete language, it is difficult to give a more precise answer.
Please seek legal counsel so they may properly review your case.
Thank you for your question.
Best regards,
Todd D. Epp, Esq.
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