When the Non-Compete Agreement May Not Work to Protect the Employer!
Rush Nigut has published an interesting comment on a recent case involving a non-compete agreement. Companies often ask new employees to enter into non-compete agreements to help the employer protect it's intellectual property. In the case at issue, the employee signed a non-solicitation agreement, stating that the employee could not solicit the customers of the employer. These types of agreements are very common.
The issue in the case was whether answering an employment ad and going to work for the customer constituted solicitation. The court said, "No," responding to an employment advertisement is not soliciting. In other words, the agreement did not prohibit customer initiated contacts with the former employee.
This is an odd case, since whatever damage was incurred by the former employer was limited to a single ex-customer. Also, if the customer was advertising to hire someone to do the work, you would assume that the ex-employer had already lost the customer. It was just a matter of time. So why spend the money to sue, which surely would not bring back the customer.
Non-compete agreements are tricky, and one year non-competes really don't do much to stop ex-employees, because by the time the ex-employer finds our about the breach, the year is usually almost over. The case described by Rush is an example (probably) of an employer cutting and pasting a non-compete agreement without consulting an attorney. I am guessing on this, but it seems logical that an attorney would also includ a provisdion restricting the right of the ex-employee to go to work for a customer an provide the same services that the Ex-employer was providing.
