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 Part VIII of our short series on “Key Legal and Drafting Issues for Non-solicitation Covenants/Agreements.” In Part VII, we hammered on “Defining Confidential Information” as another key consideration when drafting employee non-solicitation agreements. Regarding this consideration, we mentioned that a confidentiality agreement is a pact, usually written, that parties sign on to protect the integrity, privacy, or secrecy of any information shared or matters being discussed and agreed upon. We also asserted that some of the information that may be considered confidential information includes, but is not limited to, a company’s financial records, customer information, business deals or investments with other partners, employee records, and payrolls.

We also asserted that every employer has the legitimate interest to protect such information at all costs and make sure that the other party doesn’t use it without your approval or outright steal it. However, it would be crucial to note that most jurisdictions do not consider publicly available information or general knowledge about clients/customers or the business that was acquired by the employee during their employment to be regarded as confidential information. Therefore, as a best practice, anything that is constituted as confidential information should be carefully and exhaustively defined in every client/customer non-solicitation agreement.

To continue this discussion, we have hammered on “Defining the Protectable Interest with regards to the Employer’s Confidential Information and Client/Customer Goodwill” as the fourth key consideration for every employer when drafting client/customer non-solicitation agreements.

Defining the Protectable Interest with regards to the Employer’s Confidential Information and Client/Customer Goodwill

In most jurisdictions, the legitimate interest employers have to prevent former employees from appropriating or exploiting customer/client goodwill, which had been, at the employer’s competitive detriment, maintained and created at the expense of the employer is recognized. This implies that when drafting client/customer non-solicitation agreements, employers should make sure that customer/client goodwill has been emphasized through statements related to protectable interests.

For instance, such a statement that emphasizes customer/client goodwill should be something like “it is recognized by the parties that since the Employee, due to being employed by the Business, will have access to customer contact or other opportunities for the development of client goodwill belonging to the Employer and not to the Employee and that, following employment separation, the Employee would have the ability cause irreparable harm to the Business and gain an unfair competitive advantage if they use Employer’s goodwill, restrictions codified under this Employee’s post-employment conduct are necessary and reasonable.”

In Part IX of this series, we shall move the discussion forward by hammering on “Determining if the Geographic Restriction Can be Eliminated” as the fifth consideration that every employer must consider when drafting valid client/customer non-solicitation agreements that would be deemed both reasonable and 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.