What Does It Mean To “Solicit”?

What Does It Mean To “Solicit”?

Many employers include a “non-solicitation” clause in agreements that they require employees to sign.  These non-solicitation clauses usually prohibit an employee from, directly or indirectly, soliciting the business of the company’s customers to soliciting employees to leave the company.

That seems straightforward, but it rarely is.  What happens when an employee leaves a company, and a customer tracks the employee down and wants to do business?  Is that o.k.?  Is that a solicitation by the employee?

What kind of contact can a departing employee have with a former customer?

The simple answer:  it depends.  The exact language used in the non-solicitation agreement will be critical here. Sometimes, a non-solicitation is very clear that a former employee cannot solicit or do business with a customer that the employee worked with.

Other times, the non-solicitation clause does not address it. When the language is not clear, a Dallas federal judge recently helped define the parameters of what it means to “solicit.”  The case is Sunbelt Rentals, Inc. v. Holley, 2022 WL 049468 (N.D. Tex. April 7, 2022).

This clause said that the employee would not “solicit the provision of products or services similar to those provided by the Corporation to any person or entity who purchased or leased products or services from the Corporation at any time during the 12 calendar months” before the employee’s last day.

So, would this clause prohibit an employee from doing business with a former customer if the former customer reached out to the employee?

As the judge said, a full spectrum of acts needs to be reviewed in the context of a non-solicit clause.  The judge describes this as “falling on a spectrum from active communication directed by the employee and designed to culminate in new business, at the one end, to requests instigated entirely at the will of the former client at the other end.  In between lie various factual scenarios involving indirect solicitation or some act undertaken in the hopes of inducing a former client to “initiate contact.” 

The court recognized that reasonably constructing a non-solicitation clause must include more conduct than simply falling at the most reasonable end of the spectrum.

In this particular case, the former employee testified he did contact his former customers after he resigned from his job and accepted a job with a competitor.  He used his personal cellphone to contact the former customers.  However, he testified that he told the customer the contact information for the person at his former employer who would be handling the account. He specifically denied telling the customers his new employer’s name or explaining what he would be doing. 

Under these facts, while it was a close call, the court refused to consider a “solicitation” violation of the non-solicitation clause. It denied the former employer’s request for an injunction.

So, it seems that to violate the non-solicit, an employee will need to do something more than have contact with the former customer—particularly if that contact is limited to telling the customer who will be handling its account. Had this employee gone further and told the former customer where he now worked or taken any concrete steps to ask for the business, the court may have found a solicitation. 

Any contact with former customers can be tricky.  If you have a non-solicitation clause and leave one job to work for a competitor, get some guidance about staying on the right side of the line.


What Is Happening With Non-Compete Agreements?

What Is Happening With Non-Compete Agreements?

A stubborn myth is non-compete agreements are not enforceable in Texas. Nothing could be further from the truth.

New clients regularly tell me that the non-compete agreement they signed is not enforceable because Texas is a “right to work” state. Unfortunately, that means only you cannot be required to join a union as a condition of employment in Texas.  “Right to work” has nothing to do with whether a non-compete agreement can be enforced in Texas.

Even though a non-compete is considered a restraint in trade, Texas law allows parties to enter enforceable non-compete or non-solicitation agreements. The reason for this is that specific business interests—such as trade secrets or business goodwill—are considered interests worthy of protection from a departing employee for a determined period.   

However, attitudes towards non-compete agreements are changing. In recent years, some places passed laws barring companies from including non-compete agreements in employee contracts. For example, the District of Columbia passed such a law that took effect in March 2021.

President Biden recently issued an Executive Order on Promoting Competition in the American Economy.  A part of this Executive Order asks the Federal Trade Commission to use its regulatory authority to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

While this Executive Order does not change the law, it is important.  What makes it important is that the President is using his bully pulpit to complain about the use of non-compete agreements and how those impact employees. President Biden asks the FTC to consider acting to limit the use of non-competes in employment.

What does that mean for the future of non-competes? We don’t know. 

The FTC has the power to issue rules and regulations.  It seems unlikely the FTC will have rules or regulations that ban non-competes in all situations.  However, the FTC will look at whether non-competes are overused or used so in a way that unfairly limits a workers’ ability to move from job to job.

The FTC might distinguish between low-wage workers who do not routinely work with highly confidential information and senior-level executives who know the company’s trade secrets and confidential strategies.  That distinction would make sense. If the FTC does act, there might be litigation over the scope of the FTC’s rule-making authority.

Congress is also looking at non-competes as well.  The Workforce Mobility Act of 2021 was introduced in the Senate and the House of Representatives.  It has bipartisan support.  If this law passed, it would limit the use of non-competes to situations involving a sale of a business or dissolution of a partnership. That would be a huge change in the law and would affect employers in all 50 states.

We don’t know what the future will be for non-competes.  However, President Biden made his thoughts clear that non-competes have the potential to harm employees with his Executive Order. What that means is that we must be paying attention to what the FTC does and what Congress does soon.