Enforcement of Non-Compete Against Former Management

Colo. Rev. Stat. Section 8-2-113(2)(d) provides the exception that allows enforcement of a non-compete agreement in Colorado where it is being applied to:

[e]xecutive and management personnel and officers and employees who constitute professional staff to executive and management personnel.

What are “executive and management personnel” and who are their “professional staff” are fact sensitive questions that are likely to be determined at trial. Understanding where on the spectrum your facts fall in light of the cases that have considered these questions is critical.  Two decisions by the Colorado Court of Appeals have held that those categories will be determined based on the “plain meaning” and application of the statue that would effectuate the General Assembly’s purpose.  See DISH Network Corp. v. Altomari, 224 P.3d 362, 368 (Colo. App. 2009) and Phoenix Capital, Inc. v. Dowell, 176 P.3d 835, 842 (Colo. App. 2007).

In Porter Indust., Inc. v. Higgins, 680 P.2d 1339 (Colo. App. 1984) and in Management Recruiters v. Miller, 762 P.2d 763 (Colo. App. 1988), the Colorado Court of Appeals held that “[t]he determination of whether an employee is executive or management personnel, or professional staff, is a question of fact for the trial court.” Id. at 765.