Published on May 19th, 2012 by Alan L Sklover
Question: If I have a “non-solicitation” agreement with my employer that says I cannot “directly or indirectly solicit the company’s customers,” can I go to work for a competitor and have them call my customers to gain business if I have no communication with the customers at all? Would that be considered “indirect solicitation?”
Huntersville, North Carolina
Answer: Dear Daniel: Without seeing all of the wording and punctuation in your “non-solicitation” agreement, I really can’t give you a very precise response. But these general thoughts about “non-solicitation agreements,” and the phrase “indirect solicitation,” should help you:
1. First, bear in mind that the title of an agreement is not necessarily determinative of what is “inside” the agreement. Daniel, I don’t know if you are calling what you signed a “non-solicitation” agreement because that is the title at the top of the first page, or because you have carefully read the document, and you are confident that it prohibits only one thing: solicitation of customers. Many times I have seen agreements entitled “Inventions Agreement,” or “Proprietary Secrets Agreement,” or any number of other such titles, and inside those agreements I have found words that mean something very different. Thus, it is quite possible that your agreement, though entitled “Non-Solicitation Agreement” might really be a “Non-Compete Agreement.”
You may want to review a blogsite article I have written entitled “Hidden Handcuffs: Beware of Buried and Disguised Non-Compete’s.” To do so, just [click here].
2. If what you signed is really only a “non-solicitation” agreement, you are free to work for a competitor, but not free to “solicit” certain people. “Solicit” is defined by my dictionary as “to seek, request or make petition for.” You will notice that each of those words is an “active” verb, that is, each requires some action be taken by you. The restriction in your agreement does not concern where you work, and does not concern the kind of work or even who you work for, but simply that you cannot solicit certain people to do business with you, or your former colleagues to come to work for you. If you just go to work for a competitor, and don’t engage in solicitation of your employer’s customers, or your employer’s employees, you should be all right.
3. “So,” you may ask, “what is ‘indirect’ solicitation?” “Indirect solicitation” is soliciting customers by means other than direct communication. It is your trying to get those customers’ business, or your former colleagues to leave your employer, by some way or another without directly asking them to “come on over.”
I would consider each of the following activities to be “indirect solicitation”: (a) asking a colleague (or some other person) to solicit specific customers from your former job; (b) sending letters or cards to former customers and mentioning your new place of employment; (c) advertising your new employment in a trade journal or professional journal that you have good reason to believe is read by your former customers; and (d) giving a list of your former customers to your new boss, and suggesting these customers might want to be contacted.
4. Your inquiry suggests you are considering violating two of your restrictions: (a) non-solicitation, and (b) confidentiality. Your letter raises the notion of having your new employer contact your former customers and solicit them to do their business with your new employer. First, that would violate the “non-solicitation” provisions of the agreement you may have signed, as it is “indirect solicitation,” and second, it would violate your legal obligation of confidentiality that every employee has to his or her employer.
A customer list is a trade secret, and the law says – no matter what you may or may not have signed – that you cannot give your employer’s trade secrets away. It is as serious a matter – and perhaps more serious – than is giving your former employer’s computers, furniture or money away. In some states, like New York, it is even a criminal offense. Please be very careful not to do either of those things, as they could both put you in “hot water.”
Your dilemma with your non-solicit agreement might be resolved without a “war of letters” or your dismissal from your new employer. What should you do?” The answer is almost always to proactively seek a resolution of your non-compete or non-solicit dilemma with your former employer before a legal dispute arises. We offer a “Model Letter: Proactive Attempt to Prevent a Potential Non-Compete Dispute” that you can adapt for your non-solicit agreement, that shows you “What to Say, and How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!
5. I remind all my clients: “Honor your agreements, and others will honor you.” I truly believe that every person should try, in all situations, to honor their agreements. While “getting around” agreements might seem advantageous in the short term, in the long term being a “man of his word” or a “woman of her word” will get you further. Sure, there are times we cannot honor all of our agreements, but I do believe that those times are rather few, and surely fewer than the times we experience broken agreements in our lives. None of us are saints, but we can all try to limit the degree to which we are sinners.
Daniel, thanks for writing in. I hope this has been helpful. If it has, please consider telling your friends and colleagues about our blogsite.
P.S.: If you’d like some personal attention and counsel, I make myself available for Private Telephone Consultations on the subject of Non-Competition, Non-Solicitation and Related Restrictions on your working freedom. Choose 30-, 60- or 120-minutes. If interested, just [click here.]
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© 2012 Alan L. Sklover, All Rights Reserved.