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Employee breached non-solicit clause under his old contract. What should we do now?

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  • Employee breached non-solicit clause under his old contract. What should we do now?

    Our employee ("Employee 1") had a non-solicit clause that he did not tell us about. We have now hired someone from his old shop ("Employee 2") (although Employee 2 has not started work, he has resigned from his old firm). The old firm has written us and said that Employee 1 had breached his non-solicit clause and asked us to "take necessary action to stop solicitation of their employees". Employee 1 definitely breached the non-solicit clause, but he did not tell us it existed.

    I'd like to call the old firm to see whether they want us not to hire Employee 2 or whether they only want us not to hire any future employees. Any advice on how to proceed here?

  • #2
    Have they shown you a signed copy of the non-solicit agreement? What does that clause say? If your company hasn't signed it, you're not bound by it. If the employee agreed to not solicit work with certain companies or within a certain region, that's between them and that company. YOU have every right to hire whomever you want, unless your company signed a non-solicit agreement with this other company.

    Normally, a company would have an employee sign a non-compete. I've not heard of a non-solicit agreement.

    If you get a copy of the agreement, run it by your lawyer to see what they think. Keep in mind that I"m just spouting off (although educated), not giving legal advice. Also, this kind of thing is very state specific, and many states are loath to enforce overly restrictive non-competes. The employee has a right to seek work in their field, and they don't give that up when they sign on with a company.
    I am not an attorney, and don't play one on TV. Any information given is a description only and should be verified by your attorney.

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    • #3
      Originally posted by Alice Dodd View Post
      I've not heard of a non-solicit agreement.
      While not employer-employee and not an employment law issue, I've seen non-solicit language in support agreements between an IT Vendor and their client (my employer), wherein the client agrees not to solicit any of the IT Vendor's employees.
      Last edited by Law Firm Business Manager; 09-22-2011, 07:58 AM. Reason: typo, clarification
      While I may work for lawyers, I am not an attorney. Comments I make are based on my working experiences and should not be interpreted as legal advice.

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      • #4
        Oh, I've seen non-solicits, believe me. And we went to court to enforce it, and we won.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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        • #5
          This is not a DIY project. This is the reason you have legal counsel.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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          • #6
            With a non-solicit, YOU have to be a party to the agreement in order for it to be enforced against you. If the employee signed it, agreeing to not solicit work from xyz, then it's enforceable against the employee, if valid. You do need a lawyer to figure this all out, but first you need a copy of the agreement.
            I am not an attorney, and don't play one on TV. Any information given is a description only and should be verified by your attorney.

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            • #7
              Just FYI, I was marginally involved in one case where my then-employer was allowed by the court to enforce a non-solicit agreement against the other employer. There were extenuating circumstances which I won't go into now, and I have an idea that it may have been permitted under a state regulation. But it HAS happened.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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              • #8
                And to be clear, a third party calling up and say that they have a non-solicit agreement with your employee is not necessarily the same thing of them actually having such an agreement. People lie all the time about these things. And (as stated) since your company did not sign the agreement, you are not a party to any legal action.

                If the third party wants to send you a copy of the agreement, it would not hurt to get one. If your employee is really playing these types of games, it is information you might want to have. But make no promises to the third party.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

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