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St. Louis Missouri Labor & Employment Law Firm | Restrictive Covenant Attorney | Understanding Non-Solicitation Clauses
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MISSOURI LABOR AND EMPLOYMENT LAW
Understanding Non-Solicitation Clauses

Understanding Non-Solicitation Clauses

What Is a Non-Solicitation Clause?

A non-solicitation clause consists of two types of restrictions: 1) customer non-solicitation clauses, and 2) employee non-solicitation clauses. The restrictive clauses usually prohibits the former employee from directly or indirectly asking the former employer’s customers or employees to leave the company and join the employee in his or her new business.

As with non-competition clauses, the non-solicitation clauses are generally unenforceable unless they are reasonably tailored to protect legitimate business interests of the former employer.

A Non-Solicitation Clause Is A Restrictive Covenant

The threshold question is whether a former employee’s covenant not to solicit the former employer’s customers or employees  protects two well-defined interests: trade secrets and/or customer contacts. If the non-solicitation clause appears to protect those business interests, we next look to whether the protection is reasonable or whether it goes too far in restricting the former employee’s opportunities.

How Far Can An Employer Go To Protect Its Current At-Will Employees?

Generally, an employer does not have a proprietary interest in its employees at will or in their skills. Schmersahl, Treloar & Co. v. McHugh, 28 S.W.3d 345 (Mo.App.E.D. 2000). The Courts have rejected the argument that an employer’s reasonable expectation that his or her employees at-will will stay with him or her is ‘goodwill’ that is protectable. Triangle Film Corp. v. Artcraft Pictures Corp., 250 F. 981 (2d Cir. 1918). The normal skills of a trade are not included in an employer’s protectable interests.

What this means is that an employer may not unreasonably protect its current at-will employees on the basis that their trade skills and regular abilities are a proprietary interest. Soliciting another’s at-will employees does not constitute unfair competition in Missouri. There is no wrong in making an offer of employment to an at-will employee, even thought the employee and his or her new employer compete with the former employer.

Employees Beware Before You Sign

Employees should never blindly sign an employment agreement without seriously considering to what restrictions they may be binding themselves. Our law offices recommend that you consult an attorney before signing any such employment agreement or else you might unnecessarily restrict your employment opportunities in the future.

What Do Non-Solicitation Clauses Look Like?

Below is a typical non-solicitation clause which your employer might attempt to have you sign before you begin employment and sometimes even after you begin employment:

Non-Solicitation Covenant. In consideration of Employee's employment and/or continued employment, Employee agrees that during the term of the employment and for a period of three (3) years following termination of employment (regardless of which party terminates the employment), Employee will not, directly or indirectly, as an employee, employer, consultant, agent, sole proprietor, principal, associate, partner, stockholder, corporate officer, director, or in any other individual or representative capacity:

a). Solicit, service, refer, attempt to divert, take away, or accept business from, any clients of Employer for any purpose that is in
anyway competitive with Employer, or supply any information to any other person, firm, or corporation for such purpose; or

b). Solicit, persuade, induce, or encourage any other employees or agents of Employer to terminate employment with the Company.

The precise wording of such an agreement can have a wide-reaching impact on both the former employee and the employer. It is important to pay careful attention to anything you sign.

Contact Us For Review, Drafting, and Litigation of Your Non-Solicitation Clause

Our Law Office provides professional services to employees when they are considering entering a new employment agreement, considering leaving their current employment relationship, and/or navigating their employment options after leaving their former employer.

Please contact Attorney Jason M. Finkes for a consultation concerning your non-solicitation agreement, or any other employment related issue, at (314) 721-3320 or by email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it