This article provides an overview of when the positive defense of “selective enforcement” can be successful in defeating a non-compete agreement under Minnesota law. While the defence has worked from time to time, it can be difficult to establish it in practice. Therefore, while employers have the wisdom to draft non-competition agreements and apply them consistently, failure to pursue any violation of a non-compete agreement cannot be disastrous for future enforcement activities. In Kirkevold, the plaintiff, Minnesota Mining and Manufacturing Company (3M) fired a lawsuit against the defendant, Kent A. Kirkevold, a former 3M employee. Kirkevold worked from 1964 to 1979 as a chemist and technician for 3M. On February 24, 1964, Kirkevold signed an employment contract with 3M, which contained an agreement not to disclose confidential information and an agreement not to compete. On the other hand, a number of courts have been resigned to finding that an employer has waived its right to impose a non-competition agreement if it has not attempted to enforce it in the past. Unnecessary and overly broad use of competition can have a negative impact on an employer`s ability to enforce such an agreement when it is really important. If each employee is expected to sign a non-compete clause from each night home employee to the CEO, a court may consider whether genuinely protected interests are at stake. With a few exceptions, Mike, your employer is probably on “solid ground” in its application selectivity and its selectivity of honor, non-compete agreements. Mr. Butts had argued that the company had relinquished its ability to impose the agreement out of competition because it had allowed others to work in the company where Butts wanted to work.
However, the U.S. District Court for the District of New Jersey found that it was appropriate for the former employer to exercise some selectivity if it was subject to the efforts and costs of implementing agreements far from competition. While these two Minnesota cases provide helpful advice, the absence of other Minnesota cases regarding this makes the law of selective enforcement in Minnesota uncertain. As can be seen from the following three cases, there is no uniform treatment of defence in other jurisdictions. On the other hand, given some unusual facts in Surgidev Corp. v. Eye Technology, Inc., 648 F. Supp. 661 (D. Minn.
1986), the Minnesota Federal Court accepted this defence because the former employer had allowed at least 28 former employees, including senior executives, to leave the competitors and join them, and now (unfairly) has decided to select these 4 former employees for execution. For example, in HR Staffing Consultants LLC v. Butts, a human resources company in the health sector, sought an injunction seeking a non-competitive agreement against its employee Richard Butts to prevent him from working in a company to which he was assigned as a high-level executive.  Although employers are not competing with non-competitive funds, this decision is not an anomaly.