Danny Gelb
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Employment Non Solicitation Clauses


Generally, these clauses are enforceable when contained in a signed employment agreement. The object of these non-solicitation clauses is to protect the former employer from the former employee using information and / or knowledge gained during their employment that can be used to the detriment of the former employer. Although this is similar, it is important not to confuse Non Solicitation clauses with Restraint of Trade clauses.


Non Solicitation is usually broken down in to two distinct categories. The first details how the former employee cannot attempt to solicit or entice other employees, of the former employer, to move away from their current jobs with that employer. The second area these clauses cover is protection over the current clients and customers of the former employer that the former employee has had dealings with. Non Solicitation clauses are usually defined for a set period of a number of months. The theory behind these clauses is to stop you taking with you all your current customers and clients when you move jobs. The period specified only needs to be long enough to give the former employer an opportunity to establish new relationships with these customers and clients with another employee of theirs.


However, if these clauses become to overreaching then they may not be enforceable or, our courts may choose to amend them. Overreaching includes being too long in duration or, if the definition of who you are not allowed to solicit is too wide. For example, if non solicitation specified all the company's customers or clients, as opposed to just the customers and clients that you had dealings with, then the clause can be viewed as a punishment as opposed to protection of the former employer. Likewise, if the clause contained suppliers as well as customers and clients, then I would not be surprised if our courts amended the clause to remove suppliers as, generally, this would not affect the former employer in any material way.


Contact us should you wish to discuss whether you can enforce your non solicitation on a former employee or if your former employer is trying to enforce a non solicitation upon you that you do not think is fair or reasonable.


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