Non-Compete & Non-Soliciation Clauses

[rupertg]

Hello,

In my employment contract, like many others, I have a non-compete and a non-solicitation clause.

I've been contacted by a customer of my ex-employer, stating that they'd like me to undertake some work. They've also advised (in writing) that they do not think it's likely they'll continue working with my previous employer, regardless of my stance or involvement.

My clauses read as follows, so am wanting to know if I were to undertake any work based on this specific scenario if that would likely breach my clause(s) or not:

Non-Compete:
You agree not to compete, directly or indirectly, with the business. This restriction shall extend for a radius of 3 miles from the present location of the business.

Non-Solicitation:
For a period of 6 months following the termination date, you agree that you shall not directly or indirectly, solicit, assist in soliciting, accept, or facilitate the acceptance of, or deal with, the business of any customer with whom you had personal contact or dealings with during your period of employment.

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Much appreciated.
R

[rupertg]

Hello,

In my employment contract, like many others, I have a non-compete and a non-solicitation clause.

My question is - if I were to email customers I've closely worked with throughout the years a 'farewell email', and I then am contacted by a said customer outside of work, with them asking for me to continue working with them on a direct basis - would this be classified as a breach?

Much appreciated.
R

[ULA]

Depends on the terms of the non-compete and non-solicitation clause, although they are frequent in contracts they are not all worded the same. It would be helpful if you would post up the clause/s here please.

[rupertg]

Hi ULA, thank you for your response, and apologies for the delay. To add to this query so far, I've since been contacted by the customer to advise (in writing) that they do not think it's likely they'll continue working with my previous employer, regardless of my stance or involvement.

Please see below for the wording:

Non-Compete:
You agree not to compete, directly or indirectly, with the business. This restriction shall extend for a radius of 3 miles from the present location of the business.

Non-Solicitation:
For a period of 6 months following the termination date, you agree that you shall not directly or indirectly, solicit, assist in soliciting, accept, or facilitate the acceptance of, or deal with, the business of any customer with whom you had personal contact or dealings with during your period of employment.

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Thank you so much, look forward to hearing from you.

[atticus]

Non-Solicitation:
For a period of 6 months following the termination date, you agree that you shall not directly or indirectly, solicit, assist in soliciting, accept, or facilitate the acceptance of, or deal with , the business of any customer with whom you had personal contact or dealings with during your period of employment.

---
Much appreciated.
R

The words I have put in bold could cause you difficulty. The clause does not just cover actively seeking business of the company's customers, but also accepting such business if approached by the customer.

[atticus]

NB the "non-compete" section does not appear well drafted, and the company may have difficulty enforcing that part.

[atticus]

Please Rupert, one thread is enough!

[atticus]

See this bloke's other thread

[ULA]

atticus thanks for the alert - threads have been merged

[ULA]

rupertg have to agree with atticus and advise that you do not send any farewell emails to keep you safe from any action by your employer that they may consider a breach of these clauses should a customer ask to work with you.

[rupertg]

Thank you both, much appreciated. So it would perhaps be best for me to stay clear in that case, as sounds like such clauses may well be enforceable. Would the fact that said customer stating their desire to move their custom elsewhere regardless hold any weight with re to countering the clauses etc?

[ULA]

It would be best for you to stay clear.

Non-Solicitation:
For a period of 6 months following the termination date, you agree that you shall not directly or indirectly, solicit, assist in soliciting, accept, or facilitate the acceptance of, or deal with, the business of any customer with whom you had personal contact or dealings with during your period of employment.

The above bold wording in the clause will give you an issue, even if the customer wants to move their business to you.

[atticus]

Thank you both, much appreciated. So it would perhaps be best for me to stay clear in that case, as sounds like such clauses may well be enforceable. Would the fact that said customer stating their desire to move their custom elsewhere regardless hold any weight with re to countering the clauses etc?

This may be a reason to persuade your former employer to waive the restriction in respect of this specified customer, i.e. if it is persuaded that it will not be keeping this customer's business whether or not your new company gets that business. It will not give a limited waiver if it thinks that you are ignoring the restrictions more widely.

[rupertg]

This may be a reason to persuade your former employer to waive the restriction in respect of this specified customer, i.e. if it is persuaded that it will not be keeping this customer's business whether or not your new company gets that business. It will not give a limited waiver if it thinks that you are ignoring the restrictions more widely.

Thanks for this. I’d imagine this is usually something that ex-employers are tempted to decline anyhow, as it there may not be any apparent gain in them providing any such waivers? Just thinking of what/why they may actually be persuaded with to allow me to do this.

[atticus]

You'd be surprised. I have seen such things happen. It does require goodwill on both sides.