Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, legal marketing and development.

Still, here at Miletti Law®, we feel obligated to enlighten, educate, and create awareness, free of charge, about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, to achieve this goal, we have committed ourselves to creating authoritative, trustworthy, & distinctive content. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With that, the ball is in your court and you have an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and feel the positive impact of the knowledge bombs that we drop here!

As the authoritative force in Employment Law, it only seemed right to introduce one of the many upcoming series in which we introduce a variety of topics that looks to educate and deliver in a manner that only Miletti Law® can. To that end, this blog is an introduction and Part I of a new and short series on “Key Legal and Drafting Issues for Non-solicitation Covenants/Agreements.” As a legal firm specializing in, among other legal areas, Employment and Labor Law, we have been creating a diverse but focused range of content to educate, train, keep you informed, and ensure that you, our unusually motivated® readers, stay ahead of the game in matters related to the labor law. Again, this is the primary reason we have dedicated a good percentage of our blogs to look at every nook and cranny of restrictive covenants/agreements, which is a key issue when it comes to Employment and Labor Law.

Through this series, we aim to provide you with a hands-on guide regarding key legal, drafting, and negotiation considerations for employee and/or customer/client non-solicitation agreements/covenants. Usually, employers draft and create employee non-solicitation agreements and client/customer 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.

By way of backdrop, we have published a dozen blogs and created a number of videos focusing on restrictive covenants/agreements. As mentioned above and in accordance with our blog and video accessible at https://milettilaw.com/blog/f/fundamental-aspects-of-restrictive-covenants and https://www.youtube.com/watch?v=09Bb5CO9FW8, respectively, we said that restrictive covenants are contractual devices that employers may utilize to safeguard their employee, client, and customer relationships, trade secret, and other proprietary or confidential information, and other competitive interests. In another blog highlighting the five key ingredients of restrictive covenants and accessible at https://milettilaw.com/blog/f/restrictive-covenants-made-easy, we said that restrictive covenants must (1) be reasonable in time, (2) be reasonable in scope, (3) not unreasonably burden the employee, (4) not be harmful to the general public, and (5) be necessary to protect the legitimate interest of the employer.

In the U.S., employee and client/customer non-solicitation agreements are treated differently in many jurisdictions. Technically, unlike non-disclosure agreements, many courts are more likely to consider employee and client/customer non-solicitation agreements valid since the latter do not hinder a former employee’s competing ability. Notably, in line with the five ingredients mentioned above, employee non-solicitation agreements are considered by most jurisdictions, including the rogue state of California, as a legitimate way for maintaining stability in businesses’ and companies’ workforces.

However, in our blog accessible at https://milettilaw.com/blog/f/understanding-restrictive-covenants-in-the-life-sciences-industry, we asserted that when it is deemed a “restraint on trade,” a restrictive covenant is considered invalid. Accordingly, because they are considered restraints of trade just like non-compete agreements, many jurisdictions will enforce employee and client/customer non-solicitation agreements if only deemed reasonable.

For these reasons, employers must address similar issues as those that would be addressed in the preparation of non-compete agreements in order to ensure that employee and client/customer non-solicitation agreements are enforceable. Most importantly, employers should proactively be aware of the justification for the restrictions being used to show a protectable interest in time and geographic restrictions, the scope of activity, and barring the recruitment of employees and/or clients/customers.

Ideally, we will begin by focusing on the key considerations every employer should factor in when drafting employee non-solicitation agreements. The three considerations that will be discussed in the next three blogs include (1) Considering Including Time, Geographic, or Other Restrictions, (2) Considering Limiting the Restraint on Employee Solicitation to a Reasonable Time Period, and (3) Avoiding Ambiguous or Overreaching Employee Non-solicitation Agreements. After that, we will shift gears and publish five more blogs that will dwell on five key considerations for every employer when drafting client/customer non-solicitation agreements. These considerations include (1) Defining Clients that will be Specifically Covered by the Non-solicitation Agreement and Determining the Scope of Prohibited Customer Solicitation, (2) Including Reasonable Geographic and Time Limits, (3) Defining Confidential Information, (4) Defining the Protectable Interest with regards to the Employer’s Confidential Information and Client/Customer Goodwill, and (5) Determining if a Geographic Restriction can be Eliminated.

Accordingly, in Part II of this new series, we shall kick-start this discussion by hammering on “Considering Including Time, Geographic, or Other Restrictions,” as one of the considerations 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.