Non-Solicitation Does NOT Mean Non-Communication

Published on May 25th, 2016 by Alan L. Sklover

Keep in Touch with Clients During Non-Solicit Periods

“ Make new friends but keep the old.
One is silver and the other gold.”

– Traditional Girl Scout Song

ACTUAL CASE HISTORIES: In recent years, there has been an undeniable increase in the number of employees, worldwide, who are required to sign “non-competition” agreements by their employers. Recently, though, “non-compete’s” are facing greater scrutiny and skepticism than ever before among many Judges, as non-compete agreements frequently entail keeping a working person – and probably a person supporting a family – out of work without a really good reason. Thus, employers and their lawyers are finding the enforceability of non-compete agreements less and less certain as time goes on.

As a result, with the same goal in mind – not losing clients and customers when an employee leaves – many employers are changing tactics. The increasingly popular tactic is to use “non-solicitation” agreements, instead, which permit employees to work for any employer of their choice, but requires them to refrain from “soliciting” business from the former employer’s customers and clients for a period of time, commonly from three months to 24 months. These are finding a more hospitable response from Judges when they are asked to rule on their enforceability.

Judges are far more likely to enforce non-solicitation agreements because they do not mandate the employee’s inability to work in their field of endeavor, but merely avoiding going after the business of the employer’s clients.

Like any other restrictive agreement, employees must abide by the terms of their non-solicitation agreements. That said, we have found, that many of our clients have not only avoided “soliciting” business from their former employers’ clients, but have also avoided any contact or communications with them whatsoever, which is entirely unnecessary and often quite self-defeating.

Out of a gut-level – and irrational – fear, many employees completely shut down their communications with their former customers and clients, without good reason, and by doing so decrease the chances that, after the non-solicitation period has expired, they can promptly resume the business relation previously enjoyed, as well as the fruits of it.

Don’t unnecessarily limit yourself. Maintain your valuable and hard-won client relations while under the restrictions of a non-solicitation; just don’t solicit. It’s that simple.

LESSON TO LEARN: Here is the text of a commonly worded non-solicitation agreement:

    “Employee agrees that during his or her employment by the Company and for a period of one (1) year after Employee has ceased to be employed by the Company for any reason, Employee shall not, without the prior written consent of the Company, directly or directly solicit, divert or take away, or attempt to divert or take away, the business or patronage of, the Company’s clients, customers, or accounts, or active or prospective clients, customers, or accounts.”

While it may sound confusing, it is easier analyzed if you simply “parse” it – which means cut it up into “bite-sized pieces.” As an experienced employment lawyer, all I see is (1) one year, (2) will not in any way, (3) try to solicit or take away, (4) business, from (5) the company’s clients and prospective clients. Does it say “Stop all communications with customers and prospective customers? No, nothing like that . . . so long as the communications do not “seek to solicit or divert business.”

That distinction is an important one, because the business and personal relations you may have established in dealing with customers and clients are a good part of your value in your field. Those relations do not have to be “ended cold,” but can be “kept warm” until the non-solicitation period of time is over.

Having signed a non-solicitation agreement does NOT mean that you cannot communicate with your employer’s clients. Nor does it mean cannot maintain your personal relations with your former employer’s clients. And, too, it does not mean you cannot plan to solicit their business. It just means that you cannot directly or indirectly “solicit” them or their business.

Far too many people who are under non-solicitation restrictions unnecessarily limit their activities and communications, and in doing so unnecessarily limit their career success, after signing a non-solicitation agreement

If the non-solicitation agreement you signed is worded like the one above, written only with “solicitation” in mind, then you are free to do everything else. So long as you do it very carefully, it may be very much in your interests when later – after the non-solicitation period has expired –
soliciting their business.

Life is hard enough. Don’t defeat yourself. Do keep in touch with the clients of your former employer. By continually keeping in touch you only increase your chances of them becoming your clients when “the coast is clear.”

WHAT YOU CAN DO: If you have signed a non-solicitation agreement, bear these thoughts in mind, and don’t shortchange yourself:
Continue Reading. . .

Sklover’s Thought for the Work Week

Published on May 23rd, 2016 by Alan L. Sklover

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“The purpose of life is the lesson.”

– Shannon L. Alder

Day in and day out, year in and year out, what’s most important to you? It might be money, family, success, spiritual fulfillment, power, or health. Whatever it is, and it may change over time, once understood, you will then have the wind at your back and the power of purpose in your step. With your experience of the past, reflections of the moment, and vision of the future, your purpose in life will then become your guide, your fuel, and your goal, all at the same time.

© 2016 Alan L. Sklover. All Rights Reserved

[If you would like to contribute a favorite quote, saying or proverb, please submit it to us at BusMgr@executivelaw.com].

Sklover’s Thought for the Work Week

Published on May 16th, 2016 by Alan L. Sklover

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“Curiosity is insubordination in its purest form.”

– Vladimir Nabokev

To be “subordinate” is to be “beneath” or “under another’s control.” To be “insubordinate” is to challenge that status. To be “curious” is to be open-minded, questioning, even wondering why things are the way they are. Curiosity is the path to innovation, progress and prosperity, so by all means, be curious. But when you are curious at work, you might just want to keep it a bit to yourself, because “curiosity” is sometimes viewed as insubordination, and can be viewed – rightly or wrongly – as challenging the existing authority of the status quo. Think about it.

© 2016 Alan L. Sklover. All Rights Reserved

[If you would like to contribute a favorite quote, saying or proverb, please submit it to us at BusMgr@executivelaw.com].

Job Security Secret: Be a Wise Cost Cutter

Published on May 11th, 2016 by Alan L. Sklover

Secrets of Job Security

Secret of Job Security #14:

Here’s a simple way to enhance your job security: Become known as a “Wise Cost-Cutter,” and you will likely be viewed as a “keeper,” that is, “someone to keep around.”

These days, more than any I remember, managements of every company and organization are intensely aware of the old adage “A penny saved is a penny earned.”

Put into management “lingo,” even if you can’t improve your top line growth, you nevertheless can improve your ultimate bottom line through what these days we commonly refer to as “cost efficiencies.”

One of my clients recently shared with me a lesson she learned accidentally that I’d like to share with you. While waiting in an airport lounge, she overheard someone sitting nearby talking about saving a lot of money by sending FedEx and UPS packages by “two-day delivery” service instead of “overnight delivery,” for two reasons. First, most overnight deliveries don’t really, truly, absolutely have to be there the next day. Second, in most metropolitan areas, packages sent by “two-day delivery” are, in fact, usually delivered the next morning.

When she mentioned that to her manager, he suggested they give it a try for a month, and calculate the resultant cost savings, if any. The small experiment yielded a very significant cost savings. Her manager then reported the cost savings “up the chain of authority,” which, in turn, made him appear in a most positive light. It sure didn’t hurt my client’s relation with her manager, but rather made her in his eyes as a “true keeper,” the best definition there is of a person with enhanced job security.

This particular cost-savings idea was the best kind, as it (a) did not inconvenience anyone, (b) did not pose a challenge to anyone’s self-interest, and (c) did not invite any kind of office-politics, intrigue or competition. It was simple, cost-efficient, and a win-win-win, except of course for the local FedEx and UPS offices. A casual mention of a wise cost-savings idea turned into a net positive for my client’s perception of value to her manager, and to his managers, and so increased job security for her.

Over time, she became known as someone who keeps an eye on costs, yet avoids battles that some cost-saving measures might entail. For her, it became sort of a fun game, not a constant preoccupation, but something akin to solving a complex crossword puzzle.

What is job security? It is a realistic degree of confidence that, if and when jobs are being reduced or eliminated, your job will be a degree safer than your colleagues’ jobs. Thus, if and when you depart your job, it will more likely to be on timing, terms and tone that are in your financial and career interests, and not against them.

Consider the wisdom, effectiveness and fun of identifying, assessing and suggesting a simple cost-saving measure every now and then. Enhanced job security is almost always sure to follow.

 
© 2016 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited

Sklover’s Thought for the Work Week

Published on May 9th, 2016 by Alan L. Sklover

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“Knowing what must be done
does away with fear.”

– Rosa Parks

I was once seriously ill in the hospital for a month, yet the doctors could not diagnose my problem. Oh, how I wished they could – no matter what their diagnosis might be – for only then could they treat it. So, too, have my clients felt over the past 30 years: once their “problem” at work had been “diagnosed,” and a “treatment plan” offered, their anxiety quickly reduced. Then, it was rather easy to put the solution in place. When you encounter a problem at work, take all the time and counsel necessary to figure out its cause. Only then can you solve it, and with a clear, unfettered and fearless mind and heart.

© 2016 Alan L. Sklover. All Rights Reserved

[If you would like to contribute a favorite quote, saying or proverb, please submit it to us at BusMgr@executivelaw.com].

Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 30 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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