Non‑compete clause. With which employees is it worth concluding it?

18.06.2026

Matylda is the head of HR at a technology company developing software for the financial sector.

A few months earlier the company hired a new Sales Director — Jacek. Jacek has impressive experience, knows the industry and joined the company from an international corporation. The management board had high hopes for him.

Already at the stage of signing the employment contract it was decided that Jacek would be subject to a non-compete. Both during employment and after leaving the company.

“This is a key position. We must secure the company’s interests,” the CEO argued, leaving Jacek no room for negotiation.

Matylda also had no doubts that for such a position a non-compete was fully justified.

However, the situation quickly became complicated.

After less than three months of cooperation it turned out that the expectations of the management board and the new Sales Director diverged significantly. As quickly as the hiring decision was made, the decision to part ways was also taken.

A few weeks later Agnieszka — HR Business Partner — came to Matylda with an unusual question.

“You know that from next month we will start paying Jacek compensation for the non-compete? I just calculated the costs. If we maintain this non-compete for a whole year, we will pay him almost one million PLN! And for what? For sitting at home!”

Matylda looked at her surprised.

“But Jacek was with us for only a few months… And in fact he was still in the onboarding phase…”

So was that non-compete necessary at all?

What is the purpose of a non-compete?

The primary purpose of a non-compete is to protect the company’s interests.

It is not, however, about the mere risk that an employee will leave for another organization. Changing jobs is a natural part of the market and in itself does not constitute a threat to the employer.

What matters is the type of information the employee had access to within the company and how they might use the experience gained after the end of the cooperation. Key employees possess knowledge about the company’s business strategy, development plans, pricing policy, key clients or unique technological solutions. They are also often the faces of the organization in relations with contractors and business partners.

A non-compete is intended to limit the risk that such information, contacts or experience will be used for the benefit of a competitor or for the former employee’s own business. In practice, a non-compete therefore serves to protect the company’s competitive advantage and its most valuable assets.

For a non-compete effective during employment there is another element. It is intended to ensure that the employee remains fully focused on their employer’s business and does not engage in activities that could compete with it or lead to a conflict of interest.

Non-compete during employment and after termination – can it be applied without limits?

During employment every employee has a duty to look after the company’s welfare and to refrain from actions that may harm it. The company may also expect commitment, loyalty and exclusivity from its employees, which particularly applies to managerial staff.

Therefore, concluding non-competes that apply during employment is a relatively simple and common solution. Especially for high-level positions in the organization.

The situation after termination of the employment contract looks somewhat different. Here the law provides additional conditions.

First, such a restriction can be imposed only on employees who have access to information that is particularly “sensitive” from the organization’s perspective. This concerns know-how, customer databases, strategic plans, budgets, or technological solutions. In other words, data whose disclosure could cause real harm to the company.

Thus, not all employees can be covered by such a restriction “automatically.”

Second, a post-termination non-compete is not a unilateral restriction imposed on the employee.

For the period of “sitting at home” the company must pay the employee compensation. This compensation cannot be lower than 25% of the salary the employee received prior to leaving the company, calculated for the period corresponding to the length of the non-compete. Therefore, if the non-compete is to apply for 12 months after the end of cooperation, the compensation should be calculated with reference to that period.

Who is it worth signing a non-compete with?

This group will include persons who have access to the most sensitive company information. In practice these will be:

• C-level employees

CEOs, board members, operational or financial directors generally have unrestricted access to information on the company’s financial condition, strategic plans, budgets, investments, or planned reorganizations.

Their move to a competitor can be particularly painful for the company. Especially if during their tenure they have already learned all the strengths and weaknesses of the organization.

• Sales and customer service employees

Key Account Managers, commercial directors or experienced salespeople build direct relationships with clients.

In many industries clients are loyal not so much to the brand as to a particular person.

A non-compete can reduce the risk that commercial relationships, often built over years, will be taken over by a competitor (or by the departing employee’s own business).

• R&D, IT and technical specialists

System architects, experienced programmers, product engineers or production technologists often have access to the organization’s most valuable resources.

They are the ones who create solutions that build the company’s competitive advantage.

The risk here lies primarily in transferring unique technological or process solutions to a competitor.

• Marketing employees and Product Management and Pricing departments

Those responsible for product positioning, pricing policy or marketing strategies possess knowledge about margins, planned product launches, advertising campaigns and sales activities.

For competitors such information can have enormous business value.

So is it worth – for safety – signing non-competes with all employees?

It may seem that the safest approach is to conclude such agreements with everyone.

In practice, however, this approach rarely brings real benefits — especially when we are talking about a non-compete that applies after termination of employment.

If an employee does not have access to material business information, it is difficult to demonstrate that their move to another company poses a real threat to the organization. In case of a dispute such a restriction may prove difficult to defend.

Each situation should also be analyzed individually. A high position does not always mean a high risk to the company.

Returning to Jacek’s example. Formally he held the key position of Sales Director. In practice, however, for several months he was still in the onboarding phase. He likely did not have time to learn the company’s strategic plans, take over relations with key clients, or participate in the most important negotiations.

A similar situation may apply, for example, to a board member who leaves the company after a short time. In such a case the costs of maintaining their non-compete may be completely disproportionate to the risk. Especially since in practice compensation for non-competes often significantly exceeds the statutory minimum.

On the other hand, a mid-level specialist who has worked for many years on key technological projects may possess far more information requiring protection. Their departure, without a non-compete, may pose a much greater risk to the company than that posed by a short-tenure manager.

It is also worth remembering that excessive use of non-competes – for example automatically in relation to all employees – negatively affects the company’s image.

Candidates increasingly pay attention to such provisions, often perceiving them as an attempt to unduly restrict their future career prospects.

How to approach non-competes sensibly?

First, analyze the risk.

Consider which positions actually have access to key business information and may pose a real risk to the organization.

Second, define what you want to protect.

Customer databases, technological know-how, sales strategies or business relationships require different forms of protection.

The scope of the non-compete should be precise. Otherwise the company may have trouble enforcing it.

Third, do not copy ready-made solutions.

The scope of the non-compete should be tailored to the specific position and the associated level of access to information.

The more individualized the approach, the greater the chance of effectively enforcing the contractual provisions.

Fourth, calculate the costs.

Before concluding a post-termination non-compete, assess whether the potential benefits truly justify future compensation costs.

Fifth, remember other tools.

Not every situation must be secured by a non-compete.

Confidentiality agreements or appropriate information protection procedures can be equally effective.

It is also worth remembering that the obligation to refrain from competitive activity may stem from other elements of cooperation with the employee. This particularly applies to managerial staff participating in incentive programs or bonus share programs, which often include additional loyalty-related obligations towards the organization.

In summary:

• A non-compete should protect specific company interests, not be applied automatically to all employees.
• It is worth considering primarily in relation to persons who have access to know-how, the company’s strategic plans and key business relationships.
• A post-termination non-compete always entails a cost for the organization, so its justification should be assessed individually.
• Not every situation needs to be secured by a non-compete. The company’s interests can often be protected by other tools, such as confidentiality clauses or appropriately structured incentive programs.