In a win for Maryland employees, the Fourth Circuit this week issued two opinions each affirming the district courts’ grants of summary judgment in favor of employees who were sued by their employers for allegedly violating restrictive covenants, such as non-solicitation agreements, nondisclosure agreements, and “return and preservation” provisions. Because the Court concluded the employees had not breached their agreements, it did not rule on the more basic question of whether the non-solicitation agreement involved in one of the cases was enforceable under Maryland law.

What are restrictive covenants?

Restrictive covenants are legal obligations within contracts that restrict a party from doing something.  They are commonly used in employment agreements to restrict employees from taking certain actions during or after their employment with the employer in question.  For example:

• Non-compete agreements: may prohibit an employee from working for a competitor for a set time and within a defined region;
• Non-solicitation agreements: may prevent employees from soliciting clients, customers, or employees;
• Confidentiality or nondisclosure agreements: may bar employees from disclosing sensitive company information, as defined;
• Return and preservation provisions: may require employees to return certain documents to their employer upon termination of employment (whether voluntary or involuntary), and/or require employees to preserve certain documents obtained in the course of their employment.

In the past decade dozens of states have passed laws restricting or completely banning noncompete agreements and other restrictive covenants such as non-solicitation agreements.  Over the past three years alone, more than 150 bills have been introduced in more than 35 states restricting noncompetes to at least some degree.  Many states have adopted an incremental approach, passing a bill every few years or so implementing further restrictions on noncompetes; while others, like California, adopted a comprehensive noncompete ban from the start.  Check out our comprehensive fifty-state survey of current noncompete laws and our noncompete guide as well.

In short: the tide has certainly shifted in recent years, and employees are likely to benefit.

Maryland Restrictions on Restrictive Covenants

Maryland has a wage threshold ban on noncompetes, preventing enforcement of noncompetes for low-wage workers earning less than 150% of the state minimum wage ($46,800 in 2024 (Md. Code, Lab. & Empl. § 3-716, effective October 1, 2023).  The state also prevents noncompetes for healthcare providers, defined as those that provide direct patient care and are required to be licensed under the Maryland Health Occupations Article, who earn less than $350,000 annually.  And for healthcare providers who do earn more than $350,000 annually, noncompetes are only enforceable if they do not exceed one year and do not exceed a geographical restriction of 10 miles from the primary place of employment. See Md. Code, Lab. & Empl. § 3-716, effective June 1, 2024, but affecting agreements executed on or after July 1, 2025.  The Maryland legislature has proposed legislation, S.B. 658 (Jan. 29, 2025) that would void noncompetes upon separation of employment.

Maryland has not yet enacted a statute that bans non-solicitation agreements, although courts have held that non-solicitation agreements must be “reasonable” in scope and duration, and must protect a legitimate business interest such as client relationships or trade secrets.  Ruhl v. F.A. Bartlett Tree Expert Co., 245 Md. 118 (Md. App. Ct. 1967) (finding that, in general, restrictive covenants are enforceable “if the restraint is confined within limits which are no wider as to area and duration than are reasonably necessary for the protection of the business of the employer and do not impose undue hardship on the employee or disregard the interests of the public”) (citing MacIntosh v. Brusnwick Corp., 241 Md. 24, 31 (1965)).

This week, the Fourth Circuit released two per curiam opinions in favor of employees who were sued by their employers for allegedly violating their employment agreements and certain restrictive covenants.

Allegis Group, Inc. and Aston Carter, Inc. v. Bero, No. 23-2023 (4th Cir. July 29, 2025)

In Allegis Group, Inc. and Aston Carter, Inc. v. Bero, No. 23-2023 (July 29, 2025), the Fourth Circuit affirmed the district court’s grant of summary judgment for the employee, Christopher Bero, on three claims of breach of contract.

First, the Court considered whether Bero had violated the non-solicitation agreement by reaching out to several contacts after starting a new job post-departure from the employers, and concluded that he had not because his recruiting efforts “did not relate to the business area” he serviced while employed.  Id. at 7 (citing Allegis Grp., Inc. v. Bero, 689 F. Supp. 3d 81, 132 (D. Md. 2023)).  Because it concluded that Bero did not violate the provision, the Court did not reach the question of whether that non-solicitation agreement was enforceable under Maryland law.

Aside: the district court had analyzed both the non-solicitation and nondisclosure agreements and concluded that both were unenforceable under Maryland law, concluding that the non-solicitation agreement was unreasonable to the extent that it bars employees from soliciting prospective customers, as opposed to actual customers, 689 F. Supp. 3d at 128, and therefore unenforceable, and that the nondisclosure agreement was unenforceable to the extent that it protected information beyond that protected in the Maryland Uniform Trade Secrets Act, Id. at 133–34.

The Fourth Circuit then considered whether Bero violated the nondisclosure agreement, which prohibited an employee or former employee from disclosing confidential information to “any other person or entity.”  But Bero only sent confidential information to himself at his personal email address, and the employers provided no evidence that he sent confidential information to “any other person or entity,” so the Court affirmed the grant of summary judgment for Bero on that claim.

Finally, the Court addressed whether Bero breached the “return and preservation” provision because he did not return emails he had forwarded to his personal Gmail account.  Since the preservation requirement stated that Bero must preserve company records, including emails, and precluded him from deleting or destroying them absent authorization, and the return requirement did not specify emails as among the items that must be returned upon termination of employment, the Court concluded that the requirement was ambiguous as to whether the parties intended for emails to be required to be returned, and again affirmed the grant of summary judgment for Bero on this claim.

Aerotek, Inc. and Allegis Group, Inc. v. Nosky, No. 24-1372 (4th Cir. July 29, 2025)

In Aerotek, Inc. and Allegis Group, Inc. v. Nosky, the Fourth Circuit similarly affirmed the district court’s grant of summary judgment for the employee, Kenneth Nosky, on three claims.

The Court first addressed whether Nosky had breached his duty of loyalty to his employers by forwarding confidential documents to his personal email account.  Because the employers produced no evidence that he used, copied, or shared the confidential documents with his competitor employer or any other third party, the Court affirmed the district court’s grant of summary  judgment for Nosky on the duty of loyalty claim.

Next, the Court considered whether Nosky violated the nondisclosure agreement by sending the confidential documents to his personal email account.  Aerotek argued that because Nosky forwarded email messages to his Gmail account, he violated the nondisclosure agreement by disclosing confidential information to Google, an argument which the Court said “strains credulity” and which the Court refused to consider since Aerotek had failed to make  that argument in its complaint and made it for the first time in its motion for summary judgment.

Finally, the Court conducted an analysis similar to that it had done in Bero regarding whether Nosky violated the “return and preservation” provision by failing to return emails he sent to himself.  Allegis Group was an employer in both Bero and Nosky, and the relevant portions of the “return and preservation” provision are the same in Bero.  As with in Bero, because the preservation requirement of the provision states that the employee must preserve records, including emails, while the return requirement does not specify emails, the Court could not conclude that the parties intended emails to be returned, and affirmed the grant of summary judgment to Nosky on this claim.

Although neither decision addressed the enforceability of Maryland’s non-solicitation law, the Court’s approach demonstrated that it construes contractual provisions restricting employee conduct strictly and gives employees the benefit of any ambiguity in the drafting of the provisions.

The Court’s decisions in both of these cases are unpublished, and in the Fourth Circuit that means they do not constitute binding precedent.  However, the opinions provide information to employers and employees about how the Court is approaching employer claims for breach of restrictive covenants.