Meaning
Courts faced with overbroad restrictive covenants have the power to alter the terms to make them legally enforceable, as an alternative to striking them down entirely. Through judicial blue penciling, a judge can remove or modify unreasonable geographic or temporal restrictions to save the contract. This practice varies by jurisdiction, with some states allowing full rewriting and others permitting only the striking of words.
Contract Modification
Reforming a contract ensures that the core protective intent of the employer is preserved. The modified agreement restricts the employee only to the extent necessary to protect legitimate business interests. This process maintains some level of protection even if the original draft was overly aggressive.
Rule Severability
Some jurisdictions reject this practice entirely, invalidating the entire covenant if any part is overbroad.
Operational Risk
Drafting teams that rely too heavily on the court to fix their agreements face substantial business disruption. If the court refuses to reform the clause, the employer is left with no protection against competition. This can lead to the uncontrolled departure of talent and the exposure of proprietary processes.
Well-crafted, reasonable restrictions are more secure than relying on judicial intervention to save a poorly drafted document.
