Non-Solicitation Agreements

Non-solicitation agreements are provisions in employment agreements in which, in the event that the employee leaves the company, she does not take any valuable customers or employees with her. A non-solicitation agreement may prevent an employee from taking customers/clients, employees, or both. Our Chicago non-solicitation agreement litigation lawyers are familiar with how these documents operate.

Non-solicitation agreements most commonly extend to customers, clients, and patients of the company. In the event that an employee goes to work for a competitor, the company will want to make sure that the employee does not continue to solicit its clients or customers. Furthermore, it is becoming increasingly common for employees to leave their jobs in order to start their own company. It is very difficult for a new company to make any money without customers. It can also be difficult for a new company to attract new customers when it has no history of business, no resume, so to speak. Therefore, the easiest solution is for the employee to take customers from her former employer with whom she already has a relationship. Non-solicitation agreements are added to employment agreements to prevent just this sort of thing from happening and harming the employer.

Non-solicitation agreements can also extend to soliciting other employees. Good employees are not always easy to come by and a company may have invested a fair amount of time and money into finding and training their employees. If that is the case, they would want to protect that investment by prohibiting former employees from taking other employees with them when they go to work for a competitor or start their own business. For example, if Mary worked for Company A and left to start her own company, she might want to take Lisa with her, a skilled and knowledgeable associate that Mary probably gets along with and thinks would make a good addition to her team. If Mary signed a non-solicitation agreement when she started to work for Company A, she would not be able to take Lisa with her without the possibility of a lawsuit from the company. It is in Company A's best interest to make sure that Lisa's knowledge and skills stay with the company.

Unlike non-compete agreements, courts are more likely to enforce non-solicitation clauses because they generally are not viewed as restraints on trade but rather restraints on whom a former employee may contact. Like non-compete agreements, however, non-solicitation agreements are only enforceable if a court determines that they are reasonable. Our non-solicitation agreement litigation attorneys can advise Chicago clients on whether a particular agreement is likely to be reasonable.

A non-solicitation agreement is reasonable only if it is no broader than necessary to protect an employer’s legitimate business interests. While courts recognize that employers need to protect their legitimate business interests, courts also recognize an employee’s need to find work. Thus a non-solicitation agreement that poses an undue burden on a former employee’s ability to find work in the same field could be found to be unreasonable. Take for instance a non-solicitation agreement that prohibits any form of advertisement. A court might find such an agreement to be unreasonable because not only is it overly broad, but it is damaging to the free market. Such a broad definition of solicitation could make it exceedingly difficult for an employee to find work with another company or to start her own company in the same field. For this reason, courts closely scrutinize non-solicitation agreements to make sure they are reasonable.

Simply because a non-solicitation agreement may impose some hardship on a former employee though does not mean that the agreement is unreasonable or unenforceable. Depending on the parameters of a non-solicitation agreement, a former employee may have to move to another city or state in order to work in the same field and avoid violating his non-solicitation agreement.

When being asked to enter a non-solicitation agreement, an employee should consider whether the agreement is reasonable. This is where a knowledgeable attorney can be of great assistance. If the non-solicitation agreement is overly broad or would pose an undue hindrance on the employee’s ability to work in the same field later, it may be possible to negotiate the terms of the non-solicitation agreement to make it more reasonable. An experienced attorney can also be a great asset in situations where an employer is seeking to enforce a non-solicitation agreement against a former employee.

The Chicago non-solicitation agreement litigation attorneys at DiTommaso Lubin Austermuehle have extensive experience negotiating and litigation non-solicitation agreements. Whether you are considering entering a non-solicitation agreement or need to determine if or how your non-solicitation agreement applies to you, our attorneys can assist in helping you determine the best course of action. You can contact us online today or call us at 877-990-4990 for an appointment with a non-solicitation agreement litigation lawyer in Chicago.