Employee Poaching (CONT’D FROM PAGE 28)
Again, though, employers need to be careful about over-reach that can void the agreements. Not only should the terms specify a reasonable time limit, but they should also avoid prohibiting the solicitation of all customers served by the current employer. “There usually needs to be some relationship between the employee and the customers, in terms of previous in- teractions,” cautions Ahmad. “The exception would be if you could argue, for example, that the employee had con- fidential information about your margins on certain prod- ucts and that information can be leveraged at any custom- er. You can often make that argument work.” There’s another kind of non-solicit. Often called an “an- ti-raiding provision,” this one keeps departing employees from luring co-workers to the new employer. “I don’t know of anything that triggers litigation more than a high level employee leaving a company, and then is suspected of being the Pied Piper and causing a bunch of other em- ployees to leave,” says Ahmad. “Many times that gets ar- ticulated as some type of raiding claim, even though not every state has protections specifically for that.” Having a well-written non-solicit of employees, he adds, can help
ual to continue to earn a livelihood while protecting the rights of the former employer. What if a former customer tracks down the departed employee at his or her new employer? Even then the terms of the non-solicit agreement usually hold. “The employee
has to say ‘no, I can’t help you’ and the former customer needs to contact another employee,” says Ahmad. “Oc- casionally one can go further than that and actually spe- cifically direct them to a person who can help them. But the safest thing is to not give the previous customer much direction at all.”
protect against this situation. Confidentiality Agreements
As the comments so far suggest, sometimes the old adage “less is more” can be a smart business posture: Employers may get more value from less restrictive cov-
CONTINUED ON PAGE 32
30 March 21, 2022
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