A non-compete is enforceable only if it is current.

The agreement is only as good as its enforceability

Employers often assume that because an employee signed, the terms will hold. With Illinois restrictive covenants, that assumption is frequently wrong. The Illinois Freedom to Work Act (820 ILCS 90) sets bright-line conditions for when a non-compete or non-solicit is even permitted, and courts scrutinize these provisions closely. An agreement that exceeds what the law allows can be declared void — sometimes before a court even reaches the question of reasonableness — leaving the employer with nothing. The value of a restrictive covenant is not in the signing; it is in whether it survives a challenge.

The Illinois salary thresholds — current figures and the 2027 increase

The Freedom to Work Act ties enforceability to the employee's earnings. For 2026, a non-compete is void unless the employee's actual or expected annualized earnings exceed $75,000, and a non-solicit is void unless earnings exceed $45,000. These thresholds step up on a statutory schedule: effective January 1, 2027, they rise to $80,000 for non-competes and $47,500 for non-solicits, with further increases every five years thereafter (toward $90,000 and $52,500 by 2037). Because these figures change on a fixed schedule, the threshold in effect at the moment of signing is what controls and should always be confirmed against the current statute before an agreement is drafted or enforced. A covenant signed against an employee below the applicable floor is void and unenforceable as a matter of law.

Consideration and the mandatory 14-day notice

Two procedural requirements trip up otherwise valid agreements. First, adequate consideration: the Act codifies the Fifield rule, so where the only consideration is at-will employment, the employee must remain employed for at least two years after signing for the covenant to be enforceable — meaning a non-compete supported by nothing more than a job can fail if the employee leaves at eighteen months. Employers who want certainty at the outset should provide independent consideration, such as a signing bonus or other professional or financial benefit, rather than relying on continued employment alone. Second, notice: the employer must give the employee at least 14 calendar days to review the agreement and must advise the employee, in writing, to consult an attorney. Skipping the 14-day window can void the covenant regardless of its terms.

Non-compete versus non-solicit versus confidentiality

These are different tools with different reach and different risk. A non-compete restricts where and for whom a former employee may work and is the most heavily scrutinized — and the most likely to be struck down if overbroad. A non-solicit restricts soliciting the employer's clients or staff, is narrower, and is often more defensible, especially when limited to clients the employee actually served. A confidentiality and trade-secret agreement, and an invention-assignment agreement, protect information and work product regardless of where the employee goes, and are frequently the most durable protections of all. Many employers reach for a broad non-compete when a well-drafted non-solicit plus confidentiality and IP-assignment terms would protect the real interest and survive challenge far better.

The fee-shifting penalty and worker classification

Two further exposures deserve emphasis. The Act shifts fees: if an employer sues to enforce a covenant and the employee prevails, the employee recovers attorney's fees and costs — and the Illinois Attorney General may pursue employers who show a pattern of unlawful covenants. That turns an overbroad non-compete from a dead letter into an affirmative liability. Separately, worker classification is a legal determination, not a label: calling a worker a 1099 contractor does not make them one if the economic reality is employment. Misclassification carries back taxes, unpaid overtime, unemployment and workers'-compensation exposure, and audits. An independent-contractor agreement that papers an employment relationship does not fix the problem — it documents it.

What usually goes wrong

The most common employer failure is the overbroad non-compete — too long, too wide, unsupported by adequate consideration, or applied to an employee below the salary threshold — which a court voids while awarding the employee their fees. The second is relying on at-will employment as the only consideration and then losing the covenant when the employee departs before the two-year mark. The third is skipping the 14-day notice and written advice to consult counsel, which can void an otherwise valid agreement. The fourth is misclassifying employees as contractors to save cost, then facing reclassification, back taxes, and wage liability that dwarf the savings.

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