Considering Including Time, Geographic, or Other Restrictions
Employers draft and create employee non-solicitation agreements through which former employees, vendors, and independent contractors, among others, are limited from interacting with an employer’s employees and clients/customers in certain ways. Essentially, employers, particularly those with a large number of employees and in many locations, may want or need to incorporate a restriction aimed at limiting individuals covered under the non-solicitation agreement.
By doing this, a court would be prevented from deeming such a restriction to be overly broad or too restrictive. Remember, unlike non-disclosure agreements, many courts in multiple jurisdictions are more likely to consider non-solicitation agreements valid since the non-solicitation agreements do not hinder a former employee’s competing ability.
Usually, the issue regarding employees with whom someone had confidential information or employees with whom someone had direct or material contact is the source of most limitations for the enforceability of employee non-solicitation agreements. For example, an employee may agree that for a period of 12 months after separation of employment between him/her and a company, he/she will not induce, solicit, or cause the company employee to sever their employment relationship with the company. For the purposes of this scenario, a “company employee” is deemed to be any individual (such as a vendor, independent contractor, or employee) performing services for the company in question and with whom the employee had interacted and knew confidential information or with whom the employee had material contact, within the last twenty-four months of their employment.
In Part III of this series, we will move the discussion forward by hammering on “Considering Limiting the Restraint on Employee Solicitation to a Reasonable Time Period,” another key consideration that every employer must factor in when drafting valid employee non-solicitation agreements that would be enforceable under the law.
In the meantime, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer & Author.