Are Non-Competes Enforceable for Therapists and Behavioral Health Staff in Delaware?

Delaware runs non-competes on two tracks, and which one applies turns on who you hired.

For a physician — a psychiatrist hired under an agreement between and among physicians — 6 Del. C. § 2707 voids the covenant not to compete, though damages provisions reasonably related to the injury from termination can survive.

For everyone else on a behavioral health roster — counselors, social workers, marriage and family therapists, psychologists, behavior analysts and the staff around them — our research found no Delaware statute, so the covenant stands or falls on case law.

That case law enforces covenants that are reasonable in geography and duration, serve a legitimate economic interest, and survive a balancing of the equities — with one warning for drafters: a Delaware court may refuse to rewrite an overbroad clause rather than trim it to fit.

For where Delaware sits in the wider picture — the federal rule's fate, and the states that do ban or limit these clauses — see our guide to non-competes nationally.

Start with the statute, because Delaware has one — but only for physicians.

6 Del. C. § 2707 voids any covenant not to compete in an employment, partnership or corporate agreement between and/or among physicians that restricts the physician's right to practice medicine in a particular locale and/or for a defined period of time after the agreement ends.

The voiding is narrower than it looks.

The same section keeps the rest of a physician agreement enforceable, including provisions requiring payment of damages on termination reasonably related to the injury — and those damages may include damages related to competition.

The practice bar is gone; the statute leaves room to price the harm.

For every other employee, the rules come from case law.

Our research found no Delaware statute generally governing employee non-competes, or any rule specific to behavioral health clinicians, beyond the physician provision — an absence finding, not a guarantee: the search was not exhaustive and 2025–2026 bills were not checked, so confirm the current law with Delaware employment counsel.

The key decision is Sunder Energy, LLC v. Jackson, decided by the Delaware Supreme Court on December 10, 2024.

The one healthcare-specific rule our research found is narrow.

Section 2707 covers agreements "between and/or among physicians" — so it can reach a psychiatrist practicing under a physician agreement, and that is its edge.

It does not cover counselors, social workers, marriage and family therapists, psychologists, behavior analysts or nurse practitioners, and it should never be read as protection for any of them.

It also leaves an open question: whether § 2707 reaches a psychiatrist employed by an entity that is not physician-owned — a behavioral health company, for example — is not settled by the statute's text, and our research did not resolve it.

If you employ prescribers inside a corporate structure, treat its reach as a question for Delaware employment counsel.

For the rest of the roster, that absence finding holds: a BCBA's covenant, a counselor's or a psychologist's is judged by the same case-law framework as any other employee's.

Whether a state names behavioral health licenses in its non-compete law is national context — see our guide to non-competes nationally.

Sunder Energy states the test Delaware courts apply to restrictive covenants — non-competes and non-solicits alike.

A covenant must be reasonable in geographic scope and temporal duration, advance legitimate economic interests of the party seeking enforcement, and survive a balancing of the equities.

Applied to a practice: the time and area have to fit the interest you are protecting — how long your client relationships actually run and where your clients come from, not a generic radius and term.

The interest has to be yours — the client relationships and confidential business information the clinician touched — and the court weighs the hardship on both sides.

No Delaware statute we located sets a fixed time or distance cap, so the limit is whatever a court finds reasonable on these factors.

Do not count on the court fixing your drafting for you, either.

The Sunder court held that the Court of Chancery did not abuse its discretion by refusing to blue-pencil overbroad restrictive covenants — an employer cannot assume a Delaware court will trim an overreaching clause into something enforceable.

The same decision notes courts have exercised that discretion where circumstances show equal bargaining power: specifically negotiated language, valuable consideration, or a sale of a business.

A covenant signed as part of an ordinary staff hire is a different posture from one given in a practice sale.

Draft as if what you sign is what gets enforced.

Non-solicits sit inside the same framework: Sunder's test is the one Delaware courts apply to non-competes and non-solicits alike, so a clause barring a departing clinician from soliciting your clients or staff has to clear the same three requirements — reasonable scope and duration, a legitimate economic interest, and the equities.

Keep the two tools distinct.

A non-compete restrains practice; a non-solicit restrains solicitation, which leaves a former employee free to practice and your clients free to choose — a client who wants to follow a departing therapist can still do so, because the clause binds the clinician, not the client.

The narrower, client-shaped restraint is also the interest you can articulate most concretely: the relationships your practice built and pays to support.

How these clauses treat clients versus staff, and what the ethics codes expect when a clinician departs, is covered in our guide to non-solicitation clauses.

Draft narrow from the start, because Delaware may not rescue you.

Name the interest — the client relationships and confidential information this specific clinician will touch — keep the term and area defensible from how your caseload actually runs, and remember that an overbroad clause can fail entirely when a court declines to blue-pencil it.

Protect information directly, too.

A confidentiality clause restrains disclosure without restraining practice, and it gives you something concrete to point to under the legitimate-interest prong: material your policies actually keep secret.

For physician hires under an agreement between and among physicians, work with the statute rather than around it.

Section 2707 removes the practice restriction but leaves damages provisions standing — payment reasonably related to the injury from termination, which can include damages related to competition — so the drafting question for a psychiatrist hire becomes what the departure remedy looks like, and that is counsel's work.

If the worry is paying to train a clinician who then walks across the street, a training repayment agreement is a different tool with its own enforceability rules — see our guide to training repayment agreements before adding one to a Delaware offer.

Whatever combination you land on, have Delaware employment counsel read the final wording.