As an independent contractor, Daniel Buffkin began working as a “sales recruiter” for Glacier Group (“Glacier”) in August 2008. Glacier provides recruiting and placement services in the field of information technology (“IT”). Buffkin and Glacier, by its President Eric Hilleboe, signed an Independent Contractor Agreement dated August 12, 2008 (the “Agreement”). The Agreement provided in part:
6. Covenant not to Compete. Throughout the term of this agreement and for a period of three (3) years immediately following the expiration or termination of this agreement, [Buffkin] shall not…be connected in any way with any business that competes with [Glacier] in employee recruitment or performance placement with employers with offices in the continental United States. [Buffkin] acknowledges and agrees that [Glacier’s] client base is drawn from throughout the country in which competition is restricted by this provision and that such restricted area and the length of such restriction on competition is reasonable…
On June 2, 2011, Glacier sent an e-mail message to Buffkin stating it was terminating the Agreement. On November 16, 2012, Glacier filed a complaint against Buffkin alleging that he was in breach of Paragraph 6 of the Agreement and requesting damages and injunctive relief. On December 6, 2012, Buffkin filed an answer and a counterclaim alleging that Glacier failed to comply with the termination provision of the Agreement. Glacier filed an answer on December 13, 2012, and on December 26, 2012, filed a motion to amend the complaint to correctly reflect its name as a partnership, and the court granted the motion.
On appeal, the Court noted that the Indiana Supreme Court has held that to be enforceable, a noncompetition agreement must be reasonable and that unlike reasonableness in many other contexts, the reasonableness of a noncompetition agreement is a question of law. In arguing the reasonableness of a non-competition agreement, the employer must first show that it has a legitimate interest to be protected by the agreement. The employer also bears the burden of establishing that the agreement is reasonable in scope as to the time, activity, and geographic area restricted. Non-competition agreements are strictly construed against the employer. Further, the “general skills” acquired in working for an employer may be transferred unless this occurs under circumstances where their use is adverse to his employer and would result in irreparable injury. Indeed, although an employer has a protectible property interest in the good will of his business, including secret or confidential information, the same is not true regarding the general knowledge, information or skills gained by the employee in the course of his employment. The employer, however, is not entitled to protection from an employee’s use of his knowledge, skill or general information acquired or increased through experience or even instructions while in the employment.
Based upon the language of the Agreement and the record, and keeping in mind that non-competition agreements are strictly construed against the employer, we conclude that Paragraph 6 of the Agreement, to the extent that it protects a legitimate interest of Glacier, is unreasonable in terms of the activities it prohibits and its geographic restraints. Accordingly, the non-competition covenant in the Agreement was unenforceable. Glacier failed to meet its burden of showing a reasonable likelihood of success at trial. As a result, the court erred in granting its request for a preliminary injunction. For the foregoing reasons, we reverse the trial court’s order and remand for further proceedings consistent with this opinion. 997 N.E.2d 1