                       Nebraska Advance Sheets
	                    GAVER v. SCHNEIDER’S O.K. TIRE CO.	491
	                             Cite as 289 Neb. 491

Restatement (Second) of Torts,18 provides: “One who by fraud,
duress or other tortious means intentionally prevents another
from receiving from a third person an inheritance or gift that
he would otherwise have received is subject to liability to the
other for loss of the inheritance or gift.”
   We expressly decline to opine on the interplay between
§ 30-3855(a) and § 774B of the Restatement. Even if we were
to conclude that the statute did not prevent the adoption of
a cause of action for intentional interference with an inherit­
ance or gift, we would nevertheless decline to adopt this tort.
Plaintiffs’ second assignment of error is without merit.
First National Bank as Party.
   For the sake of completeness, we note that in the last section
of the brief for the appellees, they suggest that First National
Bank of North Platte should be dismissed as a defendant
because it has no interest in this suit. But because no cross-
appeal was filed on this issue, we do not address the argu-
ment further.19
                           CONCLUSION
      The decision of the district court is affirmed.
                                                                        Affirmed.

18	
      Restatement (Second) of Torts § 774B at 58 (1979).
19	
      Neb. Ct. R. § 2-109(D)(4) (rev. 2014).




                  Jason Gaver, appellee, v. Schneider’s
                        O.K. Tire Co., appellant.
                                   ___ N.W.2d ___

                     Filed November 14, 2014.      No. S-13-1014.

 1.	 Declaratory Judgments: Appeal and Error. When a declaratory judgment
     action presents a question of law, an appellate court decides the question indepen-
     dently of the conclusion reached by the trial court.
 2.	 Contracts: Appeal and Error. The interpretation of a contract is a question of
     law, in connection with which an appellate court has an obligation to reach its
     conclusions independently of the determinations made by the court below.
    Nebraska Advance Sheets
492	289 NEBRASKA REPORTS


 3.	 Contracts: Public Policy. At common law, all contracts in restraint of trade are
      against public policy and void.
 4.	 Restrictive Covenants: Employer and Employee. Covenants not to compete, as
      partial restraints of trade, are enforceable if the covenants are reasonable.
  5.	 ____: ____. In determining whether a covenant not to compete is valid, a court
      considers whether the restriction is (1) reasonable in the sense that it is not inju-
      rious to the public, (2) not greater than is reasonably necessary to protect the
      employer in some legitimate interest, and (3) not unduly harsh and oppressive on
      the employee.
  6.	 ____: ____. An employer has a legitimate business interest in protection against a
      former employee’s competition by improper and unfair means, but is not entitled
      to protection against ordinary competition from a former employee.
 7.	 Restrictive Covenants: Employer and Employee: Goodwill: Words and
      Phrases. To distinguish between ordinary competition and unfair competition,
      courts focus on an employee’s opportunity to appropriate the employer’s good-
      will by initiating personal contacts with the employer’s customers.
 8.	 Restrictive Covenants: Employer and Employee: Goodwill. Where an
      employee has substantial personal contacts with the employer’s customers, devel-
      ops goodwill with such customers, and siphons away the goodwill under circum-
      stances where the goodwill properly belongs to the employer, the employee’s
      resultant competition is unfair and the employer has a legitimate need for protec-
      tion against the employee’s competition.
 9.	 Restrictive Covenants: Employer and Employee. An employer has a legitimate
      need to curb or prevent competitive endeavors by a former employee who has
      acquired confidential information or trade secrets pertaining to the employer’s
      business operations.
10.	 ____: ____. An employer does not ordinarily have a legitimate business interest
      in the postemployment preclusion of an employee’s use of some general skill.
11.	 Contracts. The law does not look with favor upon restrictions against competi-
      tion, and therefore, an agreement which limits the right of a person to engage in
      a business or occupation will be strictly construed.
12.	 Restrictive Covenants: Courts: Reformation. It is not the function of the courts
      to reform unreasonable covenants not to compete solely for the purpose of mak-
      ing them legally enforceable.

  Appeal from the District Court for Platte County: Robert R.
Steinke, Judge. Affirmed.
  Ralph A. Froehlich, of Locher, Pavelka, Dostal, Braddy &
Hammes, L.L.C., for appellant.
  Stan A. Emerson, of Sipple, Hansen, Emerson, Schumacher
& Klutman, for appellee.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
                  Nebraska Advance Sheets
	               GAVER v. SCHNEIDER’S O.K. TIRE CO.	493
	                        Cite as 289 Neb. 491

    Miller-Lerman, J.
                      NATURE OF CASE
   Jason Gaver, the appellee, was employed by Schneider’s
O.K. Tire Co. (Schneider’s), the appellant, on two separate
occasions, and on each occasion, Gaver signed a noncom-
pete agreement. After Gaver’s second employment relation-
ship with Schneider’s ended on July 23, 2012, he filed his
amended complaint in the district court for Platte County
seeking a declaratory judgment that the noncompete agree-
ments were unenforceable. After a bench trial, the district
court filed an order in which it determined that the scope of
the noncompete agreements was greater than reasonably nec-
essary to protect Schneider’s against unfair competition and
that therefore, the noncompete agreements were unreasonable
and unenforceable. The district court entered declaratory judg-
ment in favor of Gaver and against Schneider’s. Schneider’s
appeals. We determine that the applicable noncompete agree-
ment at issue in this case is greater than reasonably necessary
to protect a legitimate interest of Schneider’s, and therefore,
we affirm the district court’s determination that it is unreason-
able and unenforceable.

                   STATEMENT OF FACTS
   Schneider’s is a business located in Columbus, Nebraska
that sells tires and services motor vehicles. Gaver was
twice employed by Schneider’s: from October 29, 2001, to
September 18, 2006, and from February 25, 2008, to July 23,
2012. Gaver voluntarily ended his employment relationships
with Schneider’s.
   In 1991, prior to Gaver’s employment relationship with
Schneider’s, Schneider’s had established a profit-sharing plan
with the First National Bank of Omaha as the trustee. The
plan was later transferred to another entity. The profit-sharing
plan is not in the record, but the adoption agreement, titled
“Adoption Agreement #001 Standardized Profit Sharing Plan
(Paired Profit Sharing Plan),” is in the record.
   On each occasion that Gaver was employed by Schneider’s,
Gaver and the president of Schneider’s, Bruce Schneider,
entered into almost identical noncompete agreements. The
    Nebraska Advance Sheets
494	289 NEBRASKA REPORTS



agreements are freestanding documents, not provisions of the
profit-sharing plan, and we make no comment on the propri-
ety of such noncompete provisions in profit-sharing plans.
Schneider’s asked its employees to enter into the noncompete
agreements as a condition of participating in the company’s
profit-sharing plan.
   The first agreement was entered into on April 16, 2003,
and it was drafted by Schneider’s attorney. The second agree-
ment was entered into on December 5, 2008, and it was
drafted by Schneider’s secretary and treasurer, using the 2003
agreement as a model. As set forth in more detail below, the
noncompete agreements generally state that Gaver may not
establish or open any business similar to Schneider’s or “in
any manner become interested, directly or indirectly, either
as an owner, partner, agent, stockholder, officer or other-
wise, in any such business or trade” within a 25-mile radius
of Columbus for a period of 5 years after the termination of
Gaver’s employment.
   Because Gaver’s first term of employment ended on
September 18, 2006, the 5-year term designated in the 2003
agreement has expired. Because Gaver’s second term of
employment ended on July 23, 2012, the 5-year term desig-
nated in the 2008 agreement is still in effect. The second non-
compete agreement is therefore the applicable agreement and
the subject of our analysis.
   The 2008 agreement provided:
         This Agreement made and entered into this first day
      of December 5, 2008, by and between [Schneider’s] of
      Columbus, Nebraska, hereinafter referred to as Employer,
      and . . . Gaver, hereinafter referred to as Employee.
         Whereas, Employee is employed, at will, by Employer
      under terms and conditions acceptable to both parties,
      and;
         Whereas, Employer has established a Profit Sharing
      Plan for the benefit of his Employees, and;
         Whereas, Employer desires to insure [sic] that the ben-
      efits of said Profit Sharing Plan are not used by Employee
      to the detriment of the Employer,
                  Nebraska Advance Sheets
	               GAVER v. SCHNEIDER’S O.K. TIRE CO.	495
	                        Cite as 289 Neb. 491

         Now THEREFORE, in consideration of the benefits
      accruing to both parties as a result of the above-­mentioned
      Profit Sharing Plan, the parties agree:
         1. Employer shall maintain the Schneider’s . . . Profit
      Sharing Plan under the terms and conditions as set forth
      in the Adoption Agreement #001, Standardized Profit
      Sharing Plan, (Paired Profit Sharing Plan) entered into by
      Employer on September 26, 1991.
         2. Employee shall not establish or open any trade
      business similar to the business owned and operated by
      Employer or in any manner become interested, directly or
      indirectly, either as an owner, partner, agent, stockholder,
      officer or otherwise, in any such business or trade, within
      [a] twenty-five mile radius of Columbus, Platte County,
      Nebraska from and after the date of the execution of this
      agreement and continuing for a period of five (5) years
      after the termination of the Employee’s employment for
      whatever reason.
         THIS AGREEMENT IS NOT AND SHALL NOT BE
      INTERPRETED AS AN EMPLOYMENT AGREEMENT
      AND THIS AGREEMENT DOES NOT GIVE THE
      EMPLOYEE THE RIGHT TO BE EMPLOYED BY
      EMPLOYER.
         THIS AGREEMENT IS NOT AND SHALL NOT BE
      INTERPRETED AS A RESTRICTION ON EMPLOYEE’S
      RIGHT TO BE EMPLOYEED [sic] IN A TRADE OR
      BUSINESS SIMILAR TO THE TRADE AND BUSINESS
      OWNED AND OPERATED BY EMPLOYED [sic].
(Emphasis supplied.)
   It appears undisputed that Gaver received all the profit-
sharing money he was due with respect to each period of
employment.
   Gaver filed his amended complaint on July 23, 2013,
against Schneider’s, seeking a declaratory judgment that the
2003 and 2008 noncompete agreements were unenforceable.
Gaver alleged, inter alia, that he “desires to operate a business
consisting of buying and selling new and used tires, installing
them and servicing them in all aspects of tire related issues
    Nebraska Advance Sheets
496	289 NEBRASKA REPORTS



and to do general maintenance on vehicles.” In paragraph 6 of
his amended complaint, Gaver alleged:
      The Non-Compete Agreements . . . are inequitable,
      ambiguous, vague, lack consideration, is [sic] in con-
      travention of the laws of the State of Nebraska, are not
      customer specific, are overly broad and provide excessive
      restrictions as to both time and area within which com-
      petition by [Gaver] is prohibited, are unreasonable and
      unenforceable.
Accordingly, Gaver sought an order “determining the Non-
Compete Agreements to be unenforceable, unreasonable or,
otherwise determining and adjudicating the rights, obligations
and restrictions of the parties herein.”
   Schneider’s filed its answer on August 15, 2013, generally
denying Gaver’s allegations. Schneider’s stated in its answer
that it admitted that “the Non-Compete Agreements . . . ‘are
not customer specific’ and denie[d] the remaining averments in
paragraph 6 [of Gaver’s amended complaint].”
   At the bench trial, Bruce Schneider, as president of
Schneider’s, testified that the profit-sharing documents do not
require that employees execute the noncompete agreements.
However, he testified as follows:
         [Gaver’s attorney:] Why did you ask . . . Gaver to sign
      the 2008 non-compete agreement?
         A. So that he could receive the funds for the profit
      sharing.
         ....
         [Gaver’s attorney:] Who prohibited . . . Gaver from
      receiving any funds in the profit sharing plan if he failed
      to sign the 2008 agreement?
         A. No one.
         Q. So why was it that he was required to sign the
      2008 agreement?
         A. Because when we first established this profit shar-
      ing program it was to take the profits from the corpora-
      tion and share it with the employees and then in return
      they sign an agreement stating that they will not take the
      money and compete against me in a business because I’ve
      contributed a large sum of money to them.
                  Nebraska Advance Sheets
	               GAVER v. SCHNEIDER’S O.K. TIRE CO.	497
	                        Cite as 289 Neb. 491

   Bruce Schneider further testified that he sought legal advice
and that a lawyer drafted the initial noncompete agreement. In
answer to the question, “[H]ave [the employees] all signed a
non-compete agreement?” Bruce Schneider answered, “Yes.”
   After trial, the district court filed its order on October
18, 2013, in which it determined that the 2003 and 2008
agreements were invalid and unenforceable. Citing Aon
Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748
N.W.2d 626 (2008), and Moore v. Eggers Consulting Co., 252
Neb. 396, 562 N.W.2d 534 (1997) (superseded by statute on
other grounds as stated in Coffey v. Planet Group, 287 Neb.
834, 845 N.W.2d 255 (2014)), the district court stated that
an employer has a legitimate business interest in protection
against a former employee’s competition by improper and
unfair means, but that an employer is not entitled to protection
against ordinary competition from a former employee. The
court stated that the restrictive language of the 2003 and 2008
agreements was not limited to Schneider’s customers with
whom Gaver did business and had personal contacts, or even
to Schneider’s customers generally. Because the restrictive
language in the agreements was not limited to those custom-
ers with whom Gaver actually did business or had personal
contacts, the district court determined that the scope of the
noncompete agreements was overly broad. In particular, the
district court determined that Schneider’s was attempting to
prevent Gaver from engaging in ordinary competition with
Schneider’s as the owner of his own business, not just unfair
competition. Accordingly, the district court stated that “the
scope of the noncompete provisions are greater than reason-
ably necessary to protect Schneider’s legitimate interest and
are, as such, unreasonable and unenforceable.” The district
court granted declaratory judgment in favor of Gaver and
against Schneider’s.
   Schneider’s appeals.

                 ASSIGNMENT OF ERROR
  Schneider’s claims that the district court erred when it deter-
mined that the noncompete agreements were unenforceable
under Nebraska law.
    Nebraska Advance Sheets
498	289 NEBRASKA REPORTS



                  STANDARDS OF REVIEW
   [1] When a declaratory judgment action presents a question
of law, an appellate court decides the question independently of
the conclusion reached by the trial court. Vlach v. Vlach, 286
Neb. 141, 835 N.W.2d 72 (2013).
   [2] The interpretation of a contract is a question of law, in
connection with which an appellate court has an obligation to
reach its conclusions independently of the determinations made
by the court below. Woodle v. Commonwealth Land Title Ins.
Co., 287 Neb. 917, 844 N.W.2d 806 (2014).

                            ANALYSIS
   Schneider’s claims that the district court erred when it deter-
mined that the noncompete agreements are unreasonable and
unenforceable. Schneider’s argues that the restrictions in the
noncompete agreements are valid and enforceable because they
are no greater than reasonably necessary to protect its legiti-
mate business interest. We reject Schneider’s argument and
find no error in the ruling of the district court.
   [3,4] We have long recognized that at common law, all
contracts in restraint of trade are against public policy and
void. Securities Acceptance Corp. v. Brown, 171 Neb. 406,
106 N.W.2d 456 (1960), modified on denial of rehearing 171
Neb. 701, 107 N.W.2d 540 (1961). Nebraska statutes are to
the same effect. See, e.g., Neb. Rev. Stat. § 59-1603 (Reissue
2010) (stating that “[a]ny contract, combination, in the form
of trust or otherwise, or conspiracy in restraint of trade or
commerce shall be unlawful”). “However, while not favorites
of the law, partial restraints are not deemed to be unenforcible
when they are ancillary to a contract of employment and are
apparently necessary to afford fair protection to the employer.”
Securities Acceptance Corp. v. Brown, 171 Neb. at 414, 106
N.W.2d at 462. Covenants not to compete, as partial restraints
of trade, are enforceable if the covenants are reasonable. See
Boisen v. Petersen Flying Serv., 222 Neb. 239, 383 N.W.2d
29 (1986).
   [5] This court has repeatedly stated that there are three
considerations used to test the validity of a covenant not to
compete. See Vlasin v. Len Johnson & Co., 235 Neb. 450, 455
                  Nebraska Advance Sheets
	               GAVER v. SCHNEIDER’S O.K. TIRE CO.	499
	                        Cite as 289 Neb. 491

N.W.2d 772 (1990). Summarizing the three requirements, we
have more recently stated that
      [i]n determining whether a covenant not to compete is
      valid, a court considers whether the restriction is (1) rea-
      sonable in the sense that it is not injurious to the public,
      (2) not greater than is reasonably necessary to protect the
      employer in some legitimate interest, and (3) not unduly
      harsh and oppressive on the employee.
Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642,
653, 748 N.W.2d 626, 638 (2008). We have suggested that it
is often best to consider the second feature identified above
and initially determine if the restraint is in aid of some legiti-
mate interest of the employer. See Boisen v. Petersen Flying
Serv., supra.
   In the past, we have determined that covenants not to com-
pete are valid and enforceable where they were reasonably
limited to restricting the former employee from contacting
customers with whom the former employee had had personal
contact while employed by the former employer and where
they contained reasonable temporal and geographical restric-
tions. See, Professional Bus. Servs. v. Rosno, 268 Neb. 99, 680
N.W.2d 176 (2004) (referring to whether restriction concerned
former employer’s clients with whom former employee had
had personal contacts); Mertz v. Pharmacists Mut. Ins. Co.,
261 Neb. 704, 625 N.W.2d 197 (2001) (referring to whether
restriction was limited to former employer’s clients with whom
former employee had had personal contacts); Vlasin v. Len
Johnson & Co., supra (determining covenant not to com-
pete was unreasonable because it was not limited to former
employer’s clients with whom former employee did business
and had had personal contacts); American Sec. Servs. v. Vodra,
222 Neb. 480, 385 N.W.2d 73 (1986) (analyzing, inter alia,
reasonableness of restrictive terms with respect to time and
space); Securities Acceptance Corp. v. Brown, supra (stating,
inter alia, that partial restraint of trade should be limited as to
both time and space). In the foregoing cases, the covenants not
to compete were included as part of an employment agreement
and represent the common format by which covenants not to
compete are presented.
    Nebraska Advance Sheets
500	289 NEBRASKA REPORTS



   However, in the past, we have been faced with determin-
ing the enforceability of provisions that are not contained in
employment contracts. In analyzing the enforceability of these
provisions, we have applied the same three reasonableness
requirements that we apply in determining the enforceabil-
ity of commonplace covenants not to compete. For example,
in Brockley v. Lozier Corp., 241 Neb. 449, 488 N.W.2d 556
(1992), we applied the three reasonableness requirements to
a forfeiture-for-competition clause that was contained in a
deferred compensation plan. The forfeiture-for-competition
clause provided that if the employee’s employment was termi-
nated and then the employee did any act or engaged “‘directly
or indirectly, whether as owner, partner, officer, employee or
otherwise, in the operation or management of any business
which shall be in competition’” with the former employer, the
former employee was to forfeit any unpaid deferred payments
from the plan. Id. at 453, 488 N.W.2d at 560.
   In Brockley, we recognized that the forfeiture-for-­
competition clause was not a conventional covenant not to
compete, but we nevertheless stated that in order for the
forfeiture-for-­competition clause to be enforceable, it needed
to be reasonable. We stated that “[w]e find that forfeitures of
deferred compensation are enforceable, but that they will be
treated in the same manner as covenants not to compete, and
therefore, the conditions making the forfeitures enforceable
must be reasonable.” Brockley, 241 Neb. at 460, 488 N.W.2d
at 563.
   In Brockley, we adopted the view set forth by the Minnesota
Supreme Court in Harris v. Bolin, 310 Minn. 391, 247 N.W.2d
600 (1976), which had stated that while other courts had
      “attempted to distinguish between covenants not to com-
      pete in employment contracts and the penalty imposed
      under profit sharing plans for competing, the purpose of
      both arrangements is the same; therefore, under the com-
      mon law, such agreements should be enforced only when
      they are found to be reasonable in scope after balancing
      the interests of the employer and employee.”
Brockley v. Lozier Corp., 241 Neb. at 459, 488 N.W.2d at
563, quoting Harris v. Bolin, supra. See, similarly, Food Fair
                 Nebraska Advance Sheets
	              GAVER v. SCHNEIDER’S O.K. TIRE CO.	501
	                       Cite as 289 Neb. 491

Stores v. Greeley, 264 Md. 105, 285 A.2d 632 (1972) (apply-
ing reasonableness standard to restrictive covenant in pension
plan). See, also, Deming v. Nationwide Mut. Ins. Co., 279
Conn. 745, 905 A.2d 623 (2006) (summarizing collected cases
considering variety of agreements and plans and variety of
analyses used by various courts, and concluding that forfeiture
provision for deferred compensation at issue was similar to
covenant not to compete, therefore, restraint against competi-
tion and enforceable only if reasonable). Applying the three
reasonableness requirements to the forfeiture-for-competition
clause at issue in Brockley, we determined that the 4- to 5-year
time restriction contained in the forfeiture-for-competition
clause was of an unreasonably long duration and that there-
fore, the clause was unenforceable.
   As another example, in Polly v. Ray D. Hilderman & Co.,
225 Neb. 662, 407 N.W.2d 751 (1987), we applied the three
reasonableness requirements developed in the covenant not
to compete area to a case involving a deferred bonus. In
Polly, the contract between the former employer and for-
mer employee provided that if the former employee com-
peted with the former employer within a certain area, “‘all
deferred bonus payments due [the former employee] shall
forthwith terminate.’” 225 Neb. at 664, 407 N.W.2d at 754.
We stated in Polly that it was unclear whether the agreement
was a covenant not to compete, but we nevertheless applied
the three reasonableness requirements developed in the cov-
enant not to compete area and determined that the agreement
was unreasonable.
   The noncompete agreement at issue in this case is some-
what unusual and differs from a conventional covenant not
to compete for at least three reasons. First, the noncom-
pete agreement is not a part of an employment agreement.
The language of the 2008 noncompete agreement states:
“THIS AGREEMENT IS NOT AND SHALL NOT BE
INTERPRETED AS AN EMPLOYMENT AGREEMENT . .
. .” Second, the noncompete agreement makes reference to
Schneider’s profit-­sharing plan. The noncompete agreement
states that Schneider’s “has established a Profit Sharing Plan
for the benefit of [its] Employees” and that “in consideration
    Nebraska Advance Sheets
502	289 NEBRASKA REPORTS



of the benefits accruing to both parties as a result of the
above-mentioned Profit Sharing Plan,” the parties agree to
the terms of the noncompete agreement. Third, although
the noncompete agreement attempts to restrict Gaver from
establishing or having an ownership interest in a compet-
ing business, unlike many litigated covenants not to com-
pete, the agreement permits Gaver to be employed by any
of Schneider’s competitors. The noncompete agreement pro-
vides: “THIS AGREEMENT IS NOT AND SHALL NOT BE
INTERPRETED AS A RESTRICTION ON EMPLOYEE’S
RIGHT TO BE EMPLOYEED [sic] IN A TRADE OR
BUSINESS SIMILAR TO THE TRADE AND BUSINESS
OWNED AND OPERATED BY EMPLOYED [sic].”
   For completeness, we remark briefly on the fact that
although the noncompete agreement refers to the profit-sharing
plan, the noncompete agreement is a freestanding document
which we interpret independently and is not integrated with
the profit-sharing plan. See Builders Supply Co. v. Czerwinski,
275 Neb. 622, 748 N.W.2d 645 (2008) (discussing integra-
tion of documents). Further, the parties agree that Schneider’s
profit-sharing plan, which is not in the record, does not contain
a noncompete provision arguably restraining trade. Thus, we
interpret the noncompete agreement by reference to its terms,
and as noted above, the interpretation of a contract is a ques-
tion of law. See Woodle v. Commonwealth Land Title Ins. Co.,
287 Neb. 917, 844 N.W.2d 806 (2014).
   Despite the fact that the noncompete agreement at issue
in this case is somewhat unusual, we recognize that it shares
a similar purpose with more commonplace covenants not to
compete and other provisions partially restraining trade—
namely to prevent Gaver from competing with Schneider’s in
certain ways. As we observed in Brockley v. Lozier Corp., 241
Neb. 449, 488 N.W.2d 556 (1992), other courts have struggled
with how to characterize challenged provisions, because the
characterization determines the applicable standard by which
these courts measure validity. See Deming v. Nationwide Mut.
Ins. Co., 279 Conn. 745, 905 A.2d 623 (2006) (discussing
several characterizations of allegedly anticompetitive provi-
sions and corresponding standard to be applied as to validity).
                  Nebraska Advance Sheets
	               GAVER v. SCHNEIDER’S O.K. TIRE CO.	503
	                        Cite as 289 Neb. 491

However, we do not believe it is necessary to resolve whether
to characterize the challenged document as a restraint of trade,
“restrictive covenant not to compete” or other partial restraint
of trade, because we rely on our Nebraska precedent, and as
we did in Brockley v. Lozier Corp., supra, and Polly v. Ray
D. Hilderman & Co., 225 Neb. 662, 407 N.W.2d 751 (1987),
we logically extend the application of the three reasonableness
requirements to determine whether the noncompete agreement
at issue is valid and enforceable.
   [6] In applying the three reasonableness requirements, we
initially focus on the second requirement: Is the restriction
greater than reasonably necessary to protect the employer in
some legitimate interest? See Boisen v. Petersen Flying Serv.,
222 Neb. 239, 383 N.W.2d 29 (1986). We have previously
enunciated the important principle, to wit: “An employer has
a legitimate business interest in protection against a former
employee’s competition by improper and unfair means, but is
not entitled to protection against ordinary competition from a
former employee.” Aon Consulting v. Midlands Fin. Benefits,
275 Neb. 642, 653, 748 N.W.2d 626, 638 (2008). See, also,
Chambers-Dobson, Inc. v. Squier, 238 Neb. 748, 759, 472
N.W.2d 391, 399 (1991) (quoting Boisen and stating that “‘[a]
covenant not to compete, as a partial restraint of trade, is
available to prevent unfair competition by a former employee
but is not available to shield an employer against ordinary
competition’”). We have further observed that “‘[a] restraint
on the employee is illegal when its purpose is the prevention
of competition, except when the methods of competition to be
prevented are methods commonly regarded as improper and
unfair.’” Boisen v. Petersen Flying Serv., 222 Neb. at 245,
383 N.W.2d at 33, quoting 6A Arthur Linton Corbin, Corbin
on Contracts § 1394 (1962). This principle is applicable to the
instant case.
   We have identified legitimate protectable business interests
as including employer’s goodwill, confidential information,
and trade secrets. See Boisen v. Petersen Flying Serv., supra. It
has been stated:
         Legitimate interests of an employer which may be
      protected from competition include: the employer’s trade
    Nebraska Advance Sheets
504	289 NEBRASKA REPORTS



      secrets which have been communicated to the employee
      during the course of employment; confidential informa-
      tion communicated by the employer to the employee,
      but not involving trade secrets, such as information on
      a unique business method; an employee’s special influ-
      ence over the employer’s customers, obtained during the
      course of employment; contacts developed during the
      employment; and the employer business’s development
      of goodwill.
54A Am. Jur. 2d Monopolies and Restraints of Trade § 906 at
208 (2009).
   [7-9] Regarding an employer’s goodwill, we have stated:
      To distinguish between “ordinary competition” and
      “unfair competition,” we have focused on an employee’s
      opportunity to appropriate the employer’s goodwill by
      initiating personal contacts with the employer’s custom-
      ers. Where an employee has substantial personal contacts
      with the employer’s customers, develops goodwill with
      such customers, and siphons away the goodwill under
      circumstances where the goodwill properly belongs to the
      employer, the employee’s resultant competition is unfair
      and the employer has a legitimate need for protection
      against the employee’s competition.
Aon Consulting v. Midlands Fin. Benefits, 275 Neb. at 653,
748 N.W.2d at 638. See, also, Mertz v. Pharmacists Mut. Ins.
Co., 261 Neb. 704, 625 N.W.2d 197 (2001); Moore v. Eggers
Consulting Co., 252 Neb. 396, 562 N.W.2d 534 (1997) (super-
seded by statute on other grounds as stated in Coffey v. Planet
Group, 287 Neb. 834, 845 N.W.2d 255 (2014)). We have also
recognized that an employer has a legitimate need to curb or
prevent competitive endeavors by a former employee who
has acquired confidential information or trade secrets pertain-
ing to the employer’s business operations. See, Brockley v.
Lozier Corp., 241 Neb. 449, 488 N.W.2d 556 (1992); Boisen v.
Petersen Flying Serv., supra.
   [10,11] Unlike the areas of goodwill, confidential informa-
tion, and trade secrets, an employer does not ordinarily have a
legitimate business interest in the postemployment preclusion
                 Nebraska Advance Sheets
	              GAVER v. SCHNEIDER’S O.K. TIRE CO.	505
	                       Cite as 289 Neb. 491

of an employee’s use of some general skill. Moore v. Eggers
Consulting Co., supra. We have stated that
      “[a] line must be drawn between the general skills and
      knowledge of the trade and information that is peculiar
      to the employer’s business.” Restatement (Second) of
      Contracts § 188, Comment g. at 45 (1981). Ordinarily,
      an employer has no legitimate business interest in post­
      employment prevention of an employee’s use of some
      general skill or training acquired while working for the
      employer, although such on-the-job acquisition of general
      knowledge, skill, or facility may make the employee an
      effective competitor for the former employer.
Boisen v. Petersen Flying Serv., 222 Neb. 239, 246-47, 383
N.W.2d 29, 34 (1986). In this regard, we have long observed
that the law does not look with favor upon restrictions against
competition, and therefore, an agreement which limits the
right of a person to engage in a business or occupation will
be strictly construed. Securities Acceptance Corp. v. Brown,
171 Neb. 406, 106 N.W.2d 456 (1960), modified on denial of
rehearing 171 Neb. 701, 107 N.W.2d 540 (1961).
   In Boisen, we determined that the former employer, an aerial
spraying business, had not shown any special circumstance
affecting a legitimate business interest to be protected by
the challenged covenant not to compete. In Boisen, the cov-
enant not to compete generally provided that when the former
employee left his employment for any reason, he could not
work for one of the employer’s competitors or own his own
competing business. Specifically, the contract stated that the
former employee
      “shall not enter any occupation or employment, whether
      working for someone else or as a self-employed person,
      as owner, operator, employee, salesman, representative,
      pilot, instructor, advisor or consultant in, with or to
      any business which is in competition with any business
      presently performed or performed at any time during
      the employment of employee, by [the former employer],
      within a radius of 50 miles of Minden, Kearney County,
      Nebraska, for a period for 10 years from the date of this
    Nebraska Advance Sheets
506	289 NEBRASKA REPORTS



      agreement, or from the date such employee shall leave the
      employment of employer, which ever is later.”
Boisen v. Petersen Flying Serv., 222 Neb. at 242, 383 N.W.2d
at 31.
   In analyzing the reasonableness of the covenant not to
compete in Boisen, we observed that the record showed: the
former employee had no personal and business-based con-
tact with customers or prospective customers of the former
employer; the former employee was not exposed to, and did
not acquire, confidential information accumulated by the for-
mer employer regarding its customers or potential customers;
the on-the-job training and knowledge acquired by the former
employee was no different from that which he would have
received from another employer engaged in the same busi-
ness; and the former employer had no trade secrets, such as a
significantly different technique unknown to competitors or a
unique and advantageous method to conducts its business. We
determined that
      [r]educed to its rudiments, [the former employer’s] objec-
      tive in the covenant not to compete is prevention of pro-
      spective competition consequent to another aerial spray-
      ing business’ serving agricultural customers and, perhaps,
      ultimately causing a reduction of revenue due to com-
      petitive prices or fewer customers, available or served.
      A covenant not to compete, as a partial restraint of trade,
      is available to prevent unfair competition by a former
      employee but is not available to shield an employer
      against ordinary competition. Under the circumstances
      we conclude that the questioned covenant not to com-
      pete does not protect “some legitimate business inter-
      est” of [the former employer] and is, therefore, invalid
      and unenforceable.
Boisen v. Petersen Flying Serv., 222 Neb. 239, 247-48, 383
N.W.2d 29, 34-35 (1986).
   As in Boisen, the record in this case shows that Schneider’s
has not demonstrated any special circumstances affecting a
legitimate business interest to be protected by the noncompete
agreement. There is no evidence that Gaver had any personal
and business-based contact with customers or prospective
                  Nebraska Advance Sheets
	               GAVER v. SCHNEIDER’S O.K. TIRE CO.	507
	                        Cite as 289 Neb. 491

customers of Schneider’s. Referring to the record, Gaver was
not exposed to, and did not acquire, confidential information
accumulated by Schneider’s regarding its customers or poten-
tial customers, such as customer lists. There is no evidence
that the on-the-job training and knowledge acquired by Gaver
was any different from that which would have been received
from another employer engaged in the business of automotive
repairs and sales. And the record contains no evidence that
Schneider’s had any trade secrets regarding automotive repairs
and sales.
   In its appellate brief, Schneider’s concedes that the purpose
of the noncompete agreements was not to protect Schneider’s
goodwill, which, as explained above, is a recognized protect-
able interest. Instead, Schneider’s asserts that its objective in
securing the noncompete agreements was to ensure that any
money distributed to Gaver from the profit-sharing plan would
not later be used to establish or fund a competing business.
Schneider’s identifies its business interest as its “interest in pre-
venting its earnings from directly funding a competitor.” Brief
for appellant at 17. In support of this assertion, Schneider’s
points to the paragraph in the noncompete agreement that
provides “[w]hereas, Employer desires to insure [sic] that the
benefits of said Profit Sharing Plan are not used by Employee
to the detriment of the Employer.”
   We have not previously recognized a restriction on the
use of earnings previously distributed, which are thereafter
intended to fund the creation of the former employee’s compet-
ing business, as a legitimate protectable business interest of the
employer. And we are not inclined to recognize such restriction
as legitimate in this case. As stated above, a covenant not to
compete is available to prevent unfair competition by a former
employee but is not available to shield an employer against
ordinary competition. See, Chambers-Dobson, Inc. v. Squier,
238 Neb. 748, 472 N.W.2d 391 (1991); Boisen v. Petersen
Flying Serv., supra. By attempting to restrict Gaver from open-
ing or having an ownership interest in a competing business
not coupled with a recognized protectable interest, Schneider’s
is attempting to prevent ordinary competition by a former
employee, not unfair competition.
    Nebraska Advance Sheets
508	289 NEBRASKA REPORTS



    The noncompete agreement does not protect a legitimate
business interest of Schneider’s, such as its goodwill, con-
fidential information, or trade secrets, but, rather, it seeks
to prevent competition in general by restricting the manner
in which Gaver applies funds he has already earned and
received. That is, such funds have been earned and are not a
gratuity, see Halpin v. Nebraska State Patrolmen’s Retirement
System, 211 Neb. 892, 320 N.W.2d 910 (1982) (discussing
funds that are not gratuities), and they are not payments over
which an employer retains some distributive control, see Food
Fair Stores v. Greeley, 264 Md. 105, 285 A.2d 632 (1972)
(illustrating that rules of incentive bonus retirement plan
provided that funds can be withheld until former employee
turns age 65). The anti-ownership restrictive language in the
noncompete agreement directed to the use of funds already
earned and received is not directed at a protectable legitimate
business interest, and it is greater than reasonably neces-
sary to protect the recognized interests of the employer. We
therefore conclude that the noncompete agreement is invalid
and unenforceable.
    Notwithstanding the unacceptable breadth of the restric-
tions of the noncompete agreement, Schneider’s nevertheless
contends that the noncompete agreement is reasonable and
should be enforceable, because it explicitly allows Gaver to
be employed by Schneider’s competitors. While it is correct
that Gaver may be employed by Schneider’s competitors,
this does not save the noncompete agreement. The noncom-
pete agreement contains a broad restriction prohibiting Gaver
from “establish[ing] or open[ing] any trade business similar
to the business owned and operated by Employer or in any
manner become interested, directly or indirectly, either as
an owner, partner, agent, stockholder, officer or otherwise,
in any such business or trade.” Indeed, the anti-ownership
restriction is expanded by prohibiting the enumerated own-
ership interests “or otherwise.” In this regard, the Court of
Appeals of Maryland has stated that “‘“[t]he right to labor or
use one’s skill, talents, or experience for one’s own benefit,
or furnish them to another for compensation, is a natural and
                  Nebraska Advance Sheets
	               GAVER v. SCHNEIDER’S O.K. TIRE CO.	509
	                        Cite as 289 Neb. 491

inherent right of the individual . . .” . . . .’” Food Fair Stores
v. Greeley, 264 Md. at 116, 285 A.2d at 638, quoting Ruhl
v. Bartlett Tree Co., 245 Md. 118, 225 A.2d 288 (1967). We
agree with other courts which have concluded not to enforce
restrictive covenants if under all the circumstances, the provi-
sion is unduly restrictive of the employee’s freedom. Limiting
the creation of a business is a questionable restriction. When
coupled with an attempt to prohibit the former employee’s use
of funds already earned and received, the limitations must fail.
The noncompete agreement as written is an attempt to prevent
ordinary competition, not improper or unjust competition, and
we reject Schneider’s arguments to the contrary.
   [12] It is not the function of the courts to reform unreason-
able covenants not to compete solely for the purpose of mak-
ing them legally enforceable. Moore v. Eggers Co., 252 Neb.
396, 562 N.W.2d 534 (1997) (superseded by statute on other
grounds as stated in Coffey v. Planet Group, 287 Neb. 834,
845 N.W.2d 255 (2014)); Vlasin v. Len Johnson & Co., 235
Neb. 450, 455 N.W.2d 772 (1990). We have determined above
that the noncompete agreement in this case is unreasonable,
and we do not reform it to make it enforceable.

                        CONCLUSION
   The challenged noncompete agreement is not directed at a
protectable legitimate business interest, and it is greater than
reasonably necessary to protect the legitimate interests of
Schneider’s. Therefore, the noncompete agreement is invalid
and unenforceable and the district court did not err when it
so determined.
                                                     Affirmed.
