These agreements serve to protect important employees and customer relationships. When a departing employee asks her friends to join her new company, it is advertising and sometimes we talk about poaching. The same goes for asking customers to support the new business instead of the old one. Like all cases of worker mobility, non-solicitation disputes involve three main parties – the former employer, the former employee and the new employer. Real-time factual documentation is essential for each of these actors in a non-poaching case. The former employee must record all contacts with former customers and employees. The record should include information about who initiated the contact, what steps were taken to respond to the contact, when those actions were taken, and whether and how the contact generated new business. A spreadsheet is a great way to get this information. The new employer must monitor the employee`s actions.

The former employer may try to document the loss of businesses or employees. Customers who do not wish to do business with the former employee may be willing to provide information about inappropriate behavior. But other customers may simply want a better deal and will freely give business to renegade employees. A third alternative is the lump sum compensation. Lump sum damages are provided in a contract as an amount or formula to calculate an amount that a party pays for the breach. In this context, the employer may specify an amount that the employee must pay if he violates the non-competition obligation with his employer. Since lump sum damages are part of the contract, the new employer does not have to pay lump sum damages unless the new employer has entered into a contract directly with the former employer. Courts must decide whether a lump sum indemnification clause is appropriate before a party orders them to pay. This amount may also vary. For former employees or employees, a non-solicitation agreement is a little more difficult to pin down. This is less specific than a non-compete clause as you can still work in the same area and accommodate incoming customers. You simply can`t go out of your way to reach out to old customers and ask them to move on to your new business.

Sometimes companies also try to stop indirect and passive requests, which means that a former employee who starts a business cannot advertise. This requirement could be illegal because it would prevent a company from informing someone of its existence. However, a company that announces that it has taken a seller from another company is definitely violating the spirit of non-poaching and should be part of a deal. If this is not possible, the seller in question should not be the one who takes care of customers who change as a result of the listing. Under this definition, a former employee violates a non-solicitation clause by contacting former contacts or inducing them to do business with the former employee. To conflict with the agreement, a former employee must be proactive. The response to a former customer who contacts the former employee is not an “advertisement”. In Harry Blackwood Associates v.

Caputo, 434 A.2d 169 (Pa. Super. 1981), the Pennsylvania Superior Court ruled that a no-claim clause did not prevent a former employee from doing business with a customer who had sought the former employee. Non-solicitation agreements, according to Chicago law firm Aronberg Goldgehn, are a tool used by employers to prevent former employees from engaging in certain business-related behaviors for up to a certain period of time after the termination or termination of their employment relationship. These prohibited activities include courting former employer customers, customers, business partners and other employees. The wording of the contract should make it clear what your consideration is and that you will receive “sufficient consideration” – a fanciful term that means what you get is worth your time. In general, courts consider a non-solicitation agreement to be appropriate only if it is not broader than necessary to protect an employer`s legitimate business interests. Courts seek to balance an employer`s need to protect its legitimate business interests with an employee`s need to find work. A non-solicitation agreement that would make it too difficult for a former employee to work in the same field would probably not be considered appropriate. For example, a non-solicitation agreement that defines solicitation as any form of advertising would probably not be reasonable, as it is not only excessively broad, but also harms the free market.

Such a broad definition of solicitation would likely make it virtually impossible for the former employee to find work in the same field if he or she could not advertise his or her business or if his or her new employer would have to stop advertising to hire the person. Courts scrutinize non-solicitation agreements to ensure that the terms are closely fit, clearly defined and generally reasonable. If your role has nothing to do with either of these things, it`s inappropriate for a company to ask you to sign a non-solicitation agreement (and a court would be less likely to enforce it, even if you signed it). .

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