Question: Alan, A colleague left my current company to work somewhere else. When she worked for my company she signed a “non-solicitation” agreement that said that she could not “solicit or hire” an employee of my current company for 12 months.
If I were to leave my company and take time off, or take a short term contract assignment with another company, would it then be okay for my former colleague to hire me, since I would not be employed by my current company when she offers me a job?
Answer: Dear Carlos, What your former colleague signed is commonly called a “Non-Solicitation” or “No Solicit-No Hire” Agreement. The exact words of that agreement must be read . . . carefully. Here’s what to look for:
a. Some “Non-Solicitation” Agreements say “You cannot solicit or hire an employee of our company for 12 months after You leave our company”. If this is what her Non-Solicitation Agreement says, then the important time period to measure is how long has it been since your colleague left your company. If that is more than 12 months, you can go to work for her tomorrow. Or, if she left seven months ago, and you are willing to wait for another five months – the two, together would equal 12 months – then you can work for her after five months have elapsed.
b. Some “Non-Solicitation” Agreements say, “You cannot solicit or hire any person who was an employee of this company during the period that was 12 months before you left your job.” If this is what her Non-Solicitation Agreement says, then the important thing to identify is who was employed by the company during the 12 months before she left. If this was the case with your colleague’s agreement, you would seem to be a person she simply cannot hire without violating her agreement. She might claim it is too open-ended, and thus invalid, but she would be prohibited from hiring you until she either got a Court’s clearance to do so, or your present employer’s consent. If she went ahead and hired you, she, her new employer and you could all be sued.
c. Some “Non-Solicitation” Agreements say, “You cannot solicit or hire any person who was an employee of this company within 12 months of your hiring them.” If this is what her Non-Solicitation Agreement says, then the important thing to identify is who did she employ who was employed by the company within the previous 12 months? In this instance, if you took 12 months off, or 12 months working for another company, then and only then could you go to work for her.
d. If your idea is to quickly become a “former” employee, and thus evade the restriction, that might be all right. Once again, it depends on the exact words of the agreement. One thing you should know is that any ambiguity in the Non-Solicitation Agreement would be viewed in your favor, and against your employer’s interests. So, if the words say “employees,” then they do not apply to “former employees.” Lots of lawyers draft agreements that are sloppy, and if your employer did not include “former employees,” it is simply out of luck. Again, the words are key.
e. For these reasons, you need to carefully review her agreement, or have an attorney do so for you. This stuff may seem confusing – and it often is – but the precise words are what count. If you go to work for her, you don’t want to be fired in a few days or weeks and/or threatened with a law suit. It is worth the time or expense to find out exactly what her agreement says, and how it could affect your working for her. This is something she might do, or you might do, or the two of you could do together.
If you would like to obtain a list of 5 or 6 qualified employee-sided attorneys in Atlanta, Georgia, where you live, just [click here].
Carlos, you are wise to first consider the potential problems in taking a new job before you quit your present one. It is wise, too, to carefully review the agreement that creates the problems you are aware of. For your caution, I salute you.
Hope this helps. Good luck, and we hope you’ll tell your friends about our Blog.
Best, Al Sklover
P.S.: If you would like additional attention and assistance regarding non-solicitation agreements and other workplace issues, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. If you would like a consultation, just [click here.]
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