The general rule in Wisconsin is: (a) 　Courts will literally interpret unambiguous contracts; and (b) extrinsic evidence will be used to interpret ambiguous contracts. A recent appellate court decision applied this general rule with respect to noncompete agreements holding that the trial court's finding that the noncompete was ambiguous was, without additional findings, not enough to find the agreement unenforceable. See
Is an employee who enters into a settlement agreement with an employer entitled to the same protections of statutes that place restrictions on how broad a noncompete can be? A recent Virginia opinion says no. See http://scholar.google.com/scholar_case?case=7181310524699665420&hl=en&as_sdt=2&as_vis=1&oi=scholarr
In Frank D. Gillitzer Electric Co.v. Andersen, a Wisconsin Appellate Court found that a provision in an employment contract that required an employee to repay certain training costs if the employee did not stay with the employer for four years after the training was completed did not violate Wis. Stats. § 103.465. This was the case even though there appeared to be no disagreement that the “separate” explicit noncompete portion of the employment contract was overbroad and did violate §103.465. This decision follows a the recent Wisconsin Supreme Court decision in Star Direct v. Dal Pra where the court appears to look more favorably about reading divisibility into employment contracts (as opposed to striking all restrictive covenants in an agreement containing an overbroad covenant). This holding brings up some interesting questions to consider when drafting or litigating noncompetes. What would the result be if the employer would set forth in the employment agreement that 10% of an employee's earnings during first 5 years of employment were really excess payments (or training costs) and if she leaves during that 5 year period, she owes the company 10% of her earnings during her employment?
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