A non solicitation clause is a sort of agreement that can be included in an employment contract, or be presented as a standalone document. Asking your employees to sign a non solicitation clause can protect your business by preventing them to solicit your customers for their own benefit or the benefit of a competitor
However, if you want to be certain that your non solicitation clause will be enforceable, but also that it will be effective at protecting your business, it needs to be well crafted and to meet different requirements.
1. You need a valid reason to craft your non solicitation clause
Asking your employees to sign a non solicitation clause is not necessary; if you want your clause to be enforceable, you need to have a valid reason to craft it and to present it to your employees.
You might need a non solicitation clause to protect your customer list or some business secrets, or to prevent employees who have knowledge of these secrets from leaving and using them for the benefit of your competitors.
2. Make sure your clause is reasonable
Non solicitation clauses are difficult to enforce if they are considered unreasonable. Your non solicitation clause needs to protect your business without causing harm to your employees if they decide to leave their job.
Carefully think about the restriction you want to present in your clause, about the length of time it should apply, and the geographical area it should cover. Your goal is to protect your business, not to make it impossible for your employees to make a living after they leave your company.
3. Your customer list has to be worth protecting
Before you think about protecting your customer list with a non solicitation clause, you might want to ask yourself if this list is worth protecting. If you have worked long and hard to establish your customer list and if it contains information that is not available to the public, it makes sense to want to protect it.
If anyone can figure out who your customers are and how they can contact them, it might not be that useful for you to get a non solicitation clause.
4. Your clause can’t prevent your employees for competing with you
Your non solicitation clause can’t prevent your employees from leaving your business to go work with a competing business. Your employees are free to leave and to go work where they want, as long as they don’t try to solicit your customers or to convince your other employees to leave and to join them.
If your goal is to make sure your employees can’t work for your competitors, what you need is an enforceable non compete agreement. This type of agreement can be used at the same time as a non solicitation clause.
5. Your employees have to sign your clause voluntarily
This may seem obvious, but there are employers who don’t understand this. Your employees have to sign the clause freely and voluntarily, or else it will not be enforceable if you ever have to go to court.
You can’t use your non solicitation clause as a threat, telling your employees that they will lose their jobs if they refuse to sign it. They have to agree with the restrictions presented in the clause.
6. Speak with an employment lawyer
If you have any doubts about whether your non solicitation clause is enforceable or not, don’t hesitate to speak with an employment lawyer. An employment lawyer will help you craft a strong and reasonable clause that will effectively protect your business.