Non-Solicitation Clauses/Agreements

Non-solicitations clauses or agreements are meant to protect the employer from having its customers, clients, suppliers, or other employees recruited/solicited by a departing employee.  You may find one of these clauses in your employment contract and wonder how enforceable it may be, especially if you have brought in a significant amount of business for the company you are leaving and have fostered relationships with those you work with.

So, what happens if I am terminated and want to bring my clients with me to my next position?  Well, first look at your employment contract to determine if a non-solicitation clause exists.  If a clause is in your contract attempting to limit your ability to bring your clients with you to your next position, there are some key factors that must be included in the clause to deem it enforceable.

Non-solicitation clauses are required to be narrow, clear, and reasonable in relation to the position it is attempting to restrict.    They do not necessarily have to limit you to a certain geographical area, as a non-competition clause would (due to the social media age making this irrelevant.  See: Payette v. Guay Inc., [2013] 3 SCR 95, 2013 SCC 45 (CanLII),  ), but the clause would have to have a time limit for a reasonable period (for example, limiting the poaching of clients to six months rather than six years).  Finally, the clause must also limit the scope; indicating a specific list who can and cannot be approached.

One important thing to note is that as a senior director or officer, for instance, you may not need a non-solicitation clause to be explicitly indicated in your agreement as you may have a fiduciary duty to the company.  A fiduciary duty applies to someone who is responsible for putting the company’s interests ahead of their own based on their position and knowledge of the company.  This duty does continue for a period following your departure from the company.

If you have been terminated by your employer and are intending to work for a competing company and wish to bring your clients with you, it is important to have your employment contract reviewed by a lawyer to ensure that a non-solicitation clause does not limit you.  If you have found yourself subjected to legal action as a result of breaching a non-solicitation clause, contact Monkhouse Law today for a free 30-minute phone consultation to discuss your options.

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