Most employers know that California and other so-called "blue" states have taken legislative and judicial measures to curb the use of noncompetition and non-solicitation agreements with employees. California is probably the most notorious of these states, largely banning the use of restrictive covenants in employment for decades. California has been joined by a number of additional blue states such as Minnesota and Massachusetts in restricting the use of noncompetes, largely on the grounds that the agreements reflect an imbalanced bargaining leverage between employers and workers.

In recent years, a number of red states have joined the list of jurisdictions prohibiting or severely restricting the use of employment noncompetes. These states include Oklahoma, North Dakota, and recently Kansas. These state legislatures have used a more free market Libertarian justification for the restrictions, characterizing noncompetes as interfering with individuals' ability to market their skills and experience to the top bidder.

These trends mean that employers cannot predict the future legality of noncompete agreements in a particular jurisdiction by the political party in control of the state legislature. Noncompetes are under attack from both sides of the political spectrum. One exception to this trend is Florida, which recently adopted one of the most employer-friendly noncompete laws in the U.S., presumably to entice companies to locate operations there. However, employers in other states face the likelihood of continuing scrutiny and limitations on the use of restrictive covenants in employment.

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