For most of its history, Georgia was one of the hardest states in which to enforce a non-compete agreement. Courts applied strict construction against the drafter, and a single overbroad provision could void the entire agreement. That changed when Georgia voters approved a constitutional amendment in November 2010 authorizing the legislature to regulate restrictive covenants. The General Assembly followed with the Georgia Restrictive Covenants Act, codified at O.C.G.A. §§ 13-8-50 through 13-8-59, effective May 11, 2011. Understanding what the RCA changed — and where the law still has unsettled edges — is essential for any employer or employee navigating these agreements today.
**What Changed and What Did Not**
The RCA applies only to restrictive covenants signed on or after May 11, 2011. Agreements predating that effective date remain governed by the pre-RCA common law, which was hostile to enforcement. For employers still holding pre-2011 agreements, that distinction matters — those covenants are evaluated under the old rigid framework, not the more permissive statutory standard.
For agreements within the RCA’s scope, three changes are most significant. First, courts can now modify overbroad covenants rather than voiding them entirely. Under pre-RCA law, a single unreasonable term could invalidate the whole agreement. Under the RCA, a court has authority to blue-pencil ‚Äî to narrow or rewrite ‚Äî an overbroad provision to make it reasonable and enforceable. Second, the RCA directs courts to evaluate each covenant independently. A non-compete and a non-solicitation clause in the same agreement are assessed separately; the unenforceability of one does not automatically doom the other. Third, the RCA provides statutory safe harbors for duration and geographic language, giving drafters a clearer target for compliant agreements.
**The Three-Part Reasonableness Standard**
Under O.C.G.A. ¬ß 13-8-53(a), a restrictive covenant is enforceable “so long as such restrictions are reasonable in time, geographic area, and scope of prohibited activities.” All three elements must be satisfied.
On time, the RCA provides a rebuttable presumption. Restrictions of two years or less following termination are presumed reasonable for non-compete and non-solicitation covenants. Restrictions longer than two years carry no such presumption and face harder scrutiny.
On geographic area, ¬ß 13-8-53(c)(2) provides a statutory safe harbor: language restricting the employee to “the territory where the employee is working at the time of termination” is considered sufficient if the person bound can reasonably determine the maximum scope at termination. The statute also permits language tying the restriction to the area actually served or targeted by the employee within a defined lookback period.
On scope of activity, ¬ß 13-8-53(c)(1) provides that reference to activities “of the type conducted, authorized, offered, or provided within two years prior to termination” or similar language is sufficient to describe the restricted activities.
**The Wimmer Decision: No Express Geographic Term Required**
The most significant post-RCA development came from the Georgia Supreme Court in September 2024. In *North American Senior Benefits, LLC v. Wimmer*, the Court held that § 13-8-53(a) does not require a restrictive covenant to contain an express geographic restriction to be enforceable. The statutory text requires a covenant to be reasonable in geographic area — but does not mandate that the scope be set out in explicit terms. Implied geographic scope, assessed under the totality of circumstances, can satisfy the standard.
The ruling eliminates a drafting trap that had been creating automatic unenforceability, but introduces fact-intensive inquiry in its place. Whether an implied geographic limitation is reasonable depends on the nature of the business, the employee’s role, and the actual scope of the restriction in practice. Employers should not read *Wimmer* as a license to omit territorial language ‚Äî the Court remanded for a reasonableness determination and emphasized that geographic scope remains a required element. Express language remains the more defensible drafting choice.
**Legitimate Business Interest Requirement**
The RCA does not permit enforcement of restrictive covenants absent a legitimate business interest to protect. Under ¬ß 13-8-51, protectable interests include trade secrets, confidential information, and substantial relationships with specific prospective or existing customers. A covenant that restricts an employee from competing in areas wholly unrelated to the employer’s business, or that protects no identifiable interest beyond keeping the employee away from the marketplace, does not qualify.
**Scope of Coverage**
The RCA covers more than traditional employees. Under § 13-8-50, the Act applies to employees, independent contractors, distributors, dealers, franchisees, and lessees, among others. The employer-friendly standard applies across that full range of relationships, not just to W-2 employment agreements.
**Practical Drafting Implications**
Agreements drafted to comply with the RCA should specify the duration ‚Äî two years or less to benefit from the presumption of reasonableness ‚Äî define the restricted territory in terms the employee can evaluate at the time of separation, and identify the restricted activities with reference to the employee’s actual scope of work. Confidentiality provisions benefit from the RCA’s separate treatment: non-disclosure of non-trade-secret confidential information does not require a time limit under the Act. Each covenant type should be drafted as a standalone provision with its own severability clause, so that a court modifying one provision does not unwind the others.
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