Contractual clauses that seek to prevent you from working in competition with your former employer for a defined period of time are referred to as non compete agreements.
Contractual clauses that seek to prevent you from contacting your former clients or former employees for the purposes of continuing to do business with them are referred to as non solicitation agreements.
Both non competes and non solicits are clauses that you must have agreed to as part of an employment agreement or other contractual document, in writing. These clauses are almost never ‘implied’, unless you are a very senior executive or someone with very special knowledge of your employer’s business, referred to as a fiduciary employee.
Are these clauses enforceable
You may have heard that courts don’t like to enforce non compete or non solicit agreements. For the most part this is true. If a clause is unreasonable, in any variety of ways, it can be invalid and void.
But if an employer properly drafts the clause in question and that clause does not overreach in terms of its length and scope, it may very well hold up in court.
How can you tell if a non compete or non solicit will be upheld?
The three main challenges to a non compete or non solicit clause are that it applies for too long, its geographic scope is too broad and the clause is unnecessary to protect the employer’s interests (i.e. it is unfair). However, there is a fourth challenge. In certain cases, the entire contract may not be enforceable because, for example, it was signed under duress or without proper consideration.
What happens if you violate a non competition or non solicitation clause?
You could be sued for damages for the value of lost business or lost clients that your former employer would not have otherwise lost. Sometimes these damages can be nominal but sometimes they can be significant too. In remote cases, a court could also award your former employer an “injunction”, which is essentially a restraining order that prevents you from working in the field or continuing to work on a project.
How can Whitten & Lublin Employment & Labour Lawyers help?
The question of whether your non compete or non solicit agreement will apply to you is not something you should leave to chance, try to sort out on your own or defer to the advice of a generalist or novice lawyer. The proper interpretation of a non compete and non solicit agreement is something that comes from years of experience drafting, fighting and overturning these clauses. Whitten & Lublin’s team of experienced employment lawyers know when a non compete or non solicit clause will stand up in court or when it will not. If you have signed a non compete or non solicit agreement and need advice from an expert, call Whitten & Lublin for a legal consultation.