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How to Overcome a Non-Solicitation Agreement: 3 Important Tips Your Boss Won’t Tell You

When starting a new job, your employer typically will have some paperwork for you to fill out before you can start.  The majority of these documents are fairly standard when starting any new job.  But there are some that may be unfamiliar, such as a non-solicitation agreement.

Often, a non-solicitation agreement is part of a larger document, such as an employment contract.  When this happens, it can sometimes be hard to understand exactly what you are agreeing to.  The agreements contain advanced legal terms and complex language that is intentionally difficult to comprehend.

Because your job is dependent on signing this agreement, many people just sign without fully knowing what the terms within mean.  That may work out well for you if you stay with the company for a while.  But if you end up leaving your job or being terminated, you could find yourself facing a difficult situation.

If this situation sounds familiar, don’t panic – you do have options.  The dedicated attorneys at The Law Firm of Fenters Ward are here to help.

What is a non-solicitation agreement?

A non-solicitation agreement is a contract where an employee agrees not to solicit a company’s clients or customers for his or her own benefit or for the benefit of a competitor after leaving the company.  Sometimes, these types of agreements also include language to prohibit the employee from soliciting other employees to leave when he or she moves on.

So what does this mean?

Unlike its cousin the non-competition agreement, a non-solicitation agreement does not prevent a former employee from pursuing employment in the same field where they already have experience.  Instead, while you still able to do the same type of work, you are not allowed to ask other employees to come with you, or try to get clients from your former employer to patronize your business instead.

In Pennsylvania, to qualify as solicitation, the conduct in question must be willful or intentional. This means that for you to be in violation of such an agreement, you must be actively pursuing employees or clients from your former employer.  Otherwise, your actions do not count as solicitation.

Enforceable Non-Solicitation Agreements

In Pennsylvania, for a non-solicitation agreement to be enforceable, your employer must define a clear cut definition of the term “clients.”  It must outline what qualifies as a current or prospective customer, as well as specifying whether vendors and suppliers count as clients.

Overly broad or vague definitions of clients in agreements may render the agreement legally invalid or unenforceable.

Non-Solicitation Agreements in Pennsylvania

The Pennsylvania legislature has not yet created any laws specifically regarding non-solicitation agreements.  However, Pennsylvania courts have held that for a non-solicitation agreement is enforceable if:

  1. It is related to the employment relationship between the parties;
  2. The restrictions imposed by the agreement are reasonably necessary for the protection of the employer; and
  3. The restrictions imposed are reasonably limited in duration and geographic extent.

Related to the Employment Relationship

In Pennsylvania, for a non-solicitation agreement to be enforceable, the agreement must contain a legitimate interests worthy of protection arising from a transaction or relationship between the employer and the employee.  In employment relationships, this element is typically met as long as the agreement has to do with the working relationship between the employer and the employee.

If the non-solicitation agreement that your boss had you sign is not related to your working relationship, such as not having anything to do with the type of work that you were hired to do, this element cannot be met and the agreement is unenforceable.

What is Reasonable in Pennsylvania?

Pennsylvania courts have held that in order to be valid and enforceable, a non-solicitation agreement must contain reasonable limitations. But what qualifies as a reasonable limitation under Pennsylvania law?

Under Pennsylvania law, what can be considered reasonably limited is determined on a case-by-case basis.  Pennsylvania courts determine that the duration and geographic extent are reasonable if they are reasonably necessary for the employer without imposing an undue burden on the employee.

Because both are determined on a case-by-case basis, Pennsylvania courts have not been consistent in determining what constitutes a “reasonable” duration of time or geographic extent.  If you have a question about the reasonableness of the length of time or distance that a non-solicitation agreement imposes, do not hesitate to contact us.  Our knowledgeable employment law attorneys will be happy to advise you regarding this matter.

Exceptions to Non-Solicitation Agreements

There are several situations in which Pennsylvania courts have declined to enforce non-solicitation agreements, including:

  1. Mere acceptance: An action does not qualify as solicitation if you merely accept business of a former client;
  2. Simple notification: An action does not qualify as solicitation if you simply notify your former clients of a change in employment; and
  3. General advertisement: An action will not qualify as solicitation if you place an advertisement about your change of employment in a consumer or trade publication.

In all of the above situations, the actions do not count as solicitation.  An employer who attempts to enforce a non-solicitation agreement in one of these scenarios will be unsuccessful in Pennsylvania.

We Can Help!

If you or someone you know has been the victim of a non-solicitation agreement that is unenforceable, you will need legal help.  The Law Firm of Fenters Ward is here to provide you with the legal advice that you need regarding non-solicitation agreements.  To contact us, please fill out this contact form or call 877-259-WARD.  We look forward to speaking with you and helping you freely pursue your career of choice.

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