Power to Prevent Poaching
Employers regularly use written non-solicitation agreements in an effort to prevent former employees from poaching customers and current employees from their business. Often, employers make the fatal mistake of drafting overly broad agreements, hoping to protect all business interests related to clients and employees. As restrictive covenants, however, non-solicitation agreements are viewed as disfavored restraints on trade and are closely scrutinized by courts. Complicating the issue further, judicial interpretation of the term “solicitation” in these agreements varies substantially from state to state. The inconsistent judicial interpretation and enforcement of non-solicitation agreements is particularly troubling for multi-state employers. Matters are again complicated by former employees’ use of online platforms, such as LinkedIn and Facebook, to connect with and solicit former clients or co-workers.
“Non-Solicitation Agreements in the Internet Age” (PDF 192 KB) explores key drafting and enforcement issues related to non-solicitation agreements. This white paper discusses issues related to drafting enforceable non-solicitation agreements across multiple jurisdictions, interpretation and enforcement issues arising in litigation, and implementation and enforcement issues related to former employee use of social media. Employers who pay special attention to drafting and enforcement considerations discussed in this white paper can better protect business interests and potentially avoid costly litigation.