1. Definition of Restrictive Covenants and Types of Restrictive Covenants
Article 44 of the Colombian Labor Code sets out that the stipulation whereby an employee binds him/herself not to work in certain activities, or not to work with the competitors of his employer upon the termination of his/her contract, shall produce no legal effect. In consequence, it is not possible to enforce such clauses through a judicial proceeding in Colombia.
a. Non-Compete Clauses
Post-employment non-compete clauses are not valid, and therefore cannot be enforced before a Colombian court.
a. Non-solicitation of customers and Non-solicitation of employees
Parties may agree on such post-employment restrictive covenants as non-solicitation of customers, employees or suppliers, but it is very difficult to prove non-compliance with such clauses and they are therefore difficult to enforce.
2. Enforcement of Restrictive Covenants—process and remedies
During Employment: While the employment contract is in effect, the employee may be compelled not to work in a certain activity and/or not to render his/her services to a competitor having exclusivity duty with the employer. Colombian law does not establish any additional benefits, other than the normal payment of the wages and/or fees, for the employer to obtain the employee’s agreement to such restrictions.
Post-Termination Non-Competes: Non-compete restrictions after termination of employment are not enforceable.
Post-Termination Non-Solicitation: Although non-solicitation obligations are valid, their enforceability and prosecution is difficult because the burden of proof is very high.
3. Use and Limitations of Garden Leave
Garden leave is not regulated under Colombian law.