“Should non-solicit clauses be treated the same as non-compete clauses?”

Question: My employment agreement contains a non-solicitation clause prohibiting me from “direct or indirect” solicitation of “any client or customer contacted by” me in the past.

I understand this is different from a non-compete clause, but I am wondering if your advice for dealing with non-solicitation is similar to your advice on non-compete’s.

Specifically, when/how should I inform a prospective employer? I do not think this non-solicitation will have much applicability to the role I am being considered for. What is the best way to convince a prospective employer that this should not be a concern?                                                       

Terry S.
Centerville, Ohio

Answer: Dear Terry:  

1. Generally, you should handle a non-solicit the same way you should handle a non-compete. Both are restrictions on your future employment that you have agreed to, and that you need to take into account in your future interviewing and working. Both requires a degree of care and thoughtful concern to avoid a “career crash.”

2. Bear in mind your employer may have ideas about your future activities that you do not.  It is not at all uncommon for an employer and an employee to have different ideas of how the position will play out. For example, while you may believe you are going to supervise salespeople from the home office, your employer may believe you will make sales calls with your subordinates. Your idea of the position would not be a clear violation of the restriction, while your boss’s idea may be a clear violation. It is not uncommon for these different perspectives to remain dormant in interviews, either intentionally or unintentionally. So, while you don’t think there will be a problem, better to raise the point before taking the job, and not after.

3. Wait until you have an offer in hand, and then raise the subject. As I suggest regarding non-compete’s, I think the right time to raise the issue – if your prospective employer has not already raised it – is when you have a job offer in hand. It is best raised in a late-stage interview, after you have been offered the job, and it is best raised by (a) providing a copy of the clause, (b) accompanied by a letter that explains your view that it should not be an obstacle to hiring, and (c) the reasons why. That letter should address the subject clearly, in good faith, but without identifying any of your present employer’s customers – that could put you in jeopardy of sharing confidential trade secrets.

Terry, we offer a Model Letter entitled “Disclosing Your Non-Compete to a Prospective Employer” that you might adapt and use for this purpose. If you’d like to obtain a copy, just [click here].  

4. Non-solicitation provisions are easier to “work around” than are non-compete’s. One thing that differentiates non-solicits from non-compete’s is that you and your employer can often take steps to ensure that you avoid violating a non-solicit’s effects. These steps might include: (a) identifying all of those clients you should not have any contact with, (b) assigning those clients to other employees, and (c) alerting other staff (such as receptionists or call center personnel) of the need to avoid accidentally referring calls, letters or inquiries to you.

Thanks for writing in, Terry, and allowing me to illustrate these points. You are truly “work-wise” to consider this potential stumbling block, and to consider how to overcome it. Good luck in your transition. 

Al Sklover

 Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

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