The restriction of non-compete obligations and the non-solicitation rules determine whether the contract is performed in court. A non-compete obligation prevents a former employee from competing with a former employer for a period of time. For example, if the employee had worked in a pharmaceutical company, a non-compete obligation would prevent him from working in the pharmaceutical industry. Often, these agreements are limited to a specific geographical area. A non-solicitation agreement is an obligation of an employee not to attempt to convince the employer`s customers, prospects, customers or employees to leave the company and work with the employee or a competitor. The solicitation contract, usually for a limited period of time, begins after the end of the employment relationship. The ban on poaching cannot prevent customers, customers and employees from leaving voluntarily. It can only consider the impact that a former employee may have in making that decision. Burke, Warren recently represented a company that wanted to enforce a non-solicitation agreement against a former employee. The former employee left the company, became self-employed and actively recruited customers from his former company. In court, Aaron Stanton and John Kobus, partners at Burke, showed Warren that the former employee violated his non-solicitation agreement and obtained an injunction that effectively shut down the former employee`s new business. Non-solicitation is perhaps more useful in protecting an employer`s investment of time and money in developing relationships with customers. According to the law, non-solicitation is usually an agreement not to advertise an employer`s clients or potential clients in whom the employee has worked.
 When an employee is asked to enter into a solicitation agreement, the employee should determine whether the agreement is appropriate. Such a conclusion may not be self-verifiable in which a competent lawyer can be of great help. An employee who is asked to enter into an improper solicitation agreement may be able to negotiate more reasonable terms of the agreement. The non-disclosure agreement legally prohibits an employee from disclosing important information obtained during the company`s employment and therefore prevents other companies from using it for that reason alone.  In particular, a non-solicitation is an agreement “to refrain, for a certain period after termination, from recruiting directly or with the support of other businesses from one of such an employer`s customers or from attempting to solicit business, including the active search for potential customers with whom the employee has had significant contact during his or her employment in order to offer products or services, that compete with those of the employer`s business. O.C.G.A. § 13-8-53(b). In your business, you`ve probably heard of most or all of these agreements. You can even use them all. And often, these agreements are all part of a document or contract. As a result, these agreements can often be bundled. For example, people use “non-competing” to include “non-demand.” However, if you understand the differences between these agreements, you can apply them and achieve your business goals.
Talented people, key customer relationships, and significant intellectual property and expertise (including trade secrets, proprietary business information, and enterprise technology) are at the heart of successful businesses. It has become increasingly common for companies to enter into agreements that prohibit competition or restrict solicitation to protect these vital interests. Our lawyers develop, draft and review important documents that are essential to creating the conditions for employee transition during the restrictive post-employment period. Restrictive covenants, which are generally included in solicitation, competition and confidentiality agreements, can be useful and effective tools, but they must be carefully formulated so as not to be interpreted as an unenforceable restriction on legitimate trade and competition. Often, a departing employee or his new employer chooses not to consider even a properly formulated restrictive contract. Conversely, former employers may seek to enforce inappropriate and overly broad agreements, i.e., agreements that go beyond protecting their “legitimate interests.” In the examples above, companies try to protect their assets. Other circumstances occur when a non-compete obligation is imposed on a company and restrictions are lifted. Imagine a newly hired employee who is not competing with a former employer. The new employee may be limited in finding customers of their former company, market sectors or geographic scope. This is especially likely if the person is hired at the executive level, where significant marketing or project responsibilities are expected. When hiring a new employee, always ask them if they are bound by a non-compete obligation from their former employer. Review it carefully to see what impact this Agreement could have on their actions within your company and on the actions you take for your business.
In industries where customer lists are essential, the employer will often try to prevent an employee from “stealing” customers through legal agreements, namely non-competition (non-competition) and non-solicitation. In particular, non-compete obligations require legal proof that the defendant is a certain type of employee, proof of a reasonable time, geography and scope, and proof of a legitimate business interest. A plaintiff must prove that, because the defendant worked for him, the transfer of that knowledge and experience to a competitor constitutes unfair competition. A non-competition clause is perhaps more useful in protecting the time and money spent on developing an employee`s skills. According to the law, a non-compete obligation is an agreement that “restricts competition for the duration of a restrictive agreement”.  Non-compete obligations are the most difficult to enforce, as an enforceable non-compete obligation must meet more requirements than a prohibition on solicitation or disclosure. With careful wording, non-solicitation clauses can be maintained and sufficient to protect an employer`s property interest. On the other hand, a non-compete obligation, even if well formulated, is generally justified only in exceptional circumstances.
Excessively broad clauses are less likely to be applied. The restrictive nature of the prohibitions on non-competition, secrecy and solicitation determines whether contracts are enforceable in court and whether employee withholding makes sense or not. The law differs from state to state when it comes to determining what is considered a valid business purpose and which restrictions are considered justified. Second, the prohibition of solicitation must be proportionate in its duration and scope. Duration refers to the period of time it covers, i.e. one year, five years, etc. The scope refers to the geographical area it covers, i.e. the city, county, entire state, etc. The trial judge found the clause to be inappropriate and unenforceable, stating: “This is a non-compete obligation that was not justified by the existence of exceptional circumstances for the adequate protection of Donaldson`s property interests. It contains no time limit and purports to prevent Murphy from doing business with Donaldson`s “corporate accounts and clients,” whether she had contact or contact with them during her tenure at Donaldson, or whether they were Donaldson`s clients during her tenure. The restrictive agreement also claims to prevent Murphy from accepting business with Donaldson`s clients, regardless of the nature of the business.
The restrictive agreement is not limited to Murphy agreeing to contracts that compete with Donaldson in the travel industry, but would extend at first glance to any type of business that may have nothing to do with Donaldson`s business. “What an enforceable competition, non-demand and non-disclosure agreement looks like under Georgian law Poaching agreements can serve valuable purposes for many companies. For example, many companies invest time, money, and resources to build their customer base and customer list, and they invest significant assets to keep their customer list confidential. These employers may want to prevent employees from accessing the customer list, quit their jobs, and then recruit those customers on behalf of a new or competing company. .