Labor & Employment Law

Texas Non-Solicitation Agreements Attorney: What Does it Mean to "Solicit"?

By Robert Wood, David Ellis, and James Landon

As all employment lawyers know, courts will enforce non-compete agreements only to the extent necessary to protect an employer’s legitimate interests in restraining competition.  However, courts sometimes view a provision restricting solicitation of customers much differently than a blanket non-compete restriction.

Non-compete agreements typically contain provisions prohibiting an employee from “soliciting or calling on” the employer’s customers after the employee is terminated.  Employers who have been parties to non-compete litigation know that proving solicitation can be difficult (in part, because the customers who have been “stolen” tend to take the side of the former employee).

But what does it mean to “solicit”? A Washington court defined it this way:

“`Solicit’ . . . means: `To appeal to (for something); to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving . . . .’”  By contrast, “[m]erely informing customers of one’s former employer of a change in employment, without more, is not solicitation.”

Thus, under this definition, informing your former employer’s customer that you have changed companies (which allows the customer to suggest continuing to do business with you) arguably does not constitute solicitation.  Conversely, calling the customer and urging him to do business with your new company arguably would.

Full post as published by Texas Non-Compete Law Blog on June 13, 2007 (boomark / email).