Can my husband’s non-solicitation keep him from accepting a job in a different area of the same career field?

My husband signed a non-solicitation agreement when he started his flooring sales position. He has been offered a position in the same field, but handling apartment property accounts rather than commercial builders (what he currently handles). 1) Will his non-solicitation cause him issues, since he has never handled apartment properties with his current employer, and 2) since the non-solicitation shows another stae from where we live, does that void it altogether?

Asked on June 5, 2012 under Employment Labor Law, Indiana

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

The first, and most important thing, to do is to review the EXACT terms of the non-solicitation agreement; a non-solicitation agreement is a contract, and like any other contract, it is governed by its specific language or terms.

That said, some general principals to bear in mind:

1) If the agreement says that your husband will not work for or with "competitors" or something to that effect, if the proposed job does not compete with the current employer--since the current employer is commercial RE--then he would seem to be ok.

2) While non-solicitation and non-competition agreements are enforceable, courts don't particularly like them and will "blue pencil"--or judicially modify--agreements which are too broad and overly restrict employees from supporting themselves and their families. One of the main considerations is whether a given restriction is actually necessary to protect the employer's economic interests--that is, is the employee really going to a "competitor." In making that evaluation, courts look to the geographic scope or reach of the employer: so if, for example, an employer only does business in state A but the employee relocates to state B, the court will often find that it is excessive and unnecessary to restrict the employee from working in his field in state B.

So again, you need to review the precise language of the agreement to see what it, on its face, covers, but if the new employer doesn't compete in terms of either where its business is or the type of property and clients it has, there is a good chance the agreement would not be enforceable against your husband. Given how much is at stake, however, you and your husband would be well-advised to bring a copy of the agreement to an employment law attorney, who can review its language and the situation with you in detail. Good luck.


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