What constitutes a breach of a non-solicitation clause?

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What constitutes a breach of a non-solicitation clause?

I have an non-solicitation clause with a former employer. It prohibits me from soliciting current employees from my former employer for 1 year if the services are competing. My former employer is a professional services firm and my new employment is in a completely different industry; it does not compete at all. Actually they would be a client not a competitor. They are not a current client that is not the issue. Could I be sued for hiring a current employee under my non-solicitation clause even though our businesses don’t compete if it’s still within the year?

Asked on April 23, 2011 under Employment Labor Law, Pennsylvania

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

From what you write, it would appear that you could hire a current employee. However, for a more definitive answer, you need to bring the agreement to an employment law attorney who can evaluate alll it's language, and also the specifics of your situation (e.g. the exact nature of the companies) in detail for you.

More generally, since even if you'd ultimately win, being sued and having to defend yourself is itself a losing proposition (costs time, money, etc.), why risk it? Is there any reason you absolutely *need* current employees of your former employer? Since, even if you are in the right, if the employer feels you are in the wrong--or simply is angry enough--they may try to sue you, why give them the excuse? In this economy, there must be many qualified people you can hire who do not currently work for your former employer.


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