Can i solicit former clients

To make it easier for themselves, they might include other types of restraint clauses in your employment agreement that refer not just to solicitation, but to other prohibited activities. These are clauses that prevent you from dealing with a former client at all — regardless of who approaches who first.

This type of clause stops you from carrying out work for former clients. It does not prevent you from dealing with them, provided that you do not actually do any work for those clients. Again, this bypasses the problems related to proving you solicited the client.

The issue with this type of clause is that it can be more difficult to enforce because the law tends to steer away from upholding agreements that are simply anti-competitive.

All of what I have said above assumes that you have agreed to a particular non-solicitation restraint clause in your employment agreement with your former employer. It always pays to really understand what you are signing up to when you enter into an employment agreement with a new employer. A clause preventing you from soliciting former clients is just one type of restriction that can bind you. And as we have seen, it is one of the more narrow restrictions.

If you're an employer and you notice a former employee violating the non-solicitation agreement, it's important to act fast and get a cease-and-desist order. To get one, you must prove the agreement is valid and the employee went against it. There are several reasons why a court might rule against an agreement:. Along with this minefield of problems, it's hard to prove solicitation even took place.

People have a right to work and change jobs, after all, and they might do so even if no one asks them. In many jurisdictions, the courts can also change the agreement terms to make them lawful. In others, they strike down the agreement completely. You should also remember that a future employee of yours might have to deal with another company's restrictive covenants. As an employer, you need to know if this is true and you need to respect the agreement terms.

If you don't, the former employer could sue you instead of the employee. If an employee or other individual involved with a business signs a non-solicitation agreement and violates its terms, the business may choose to take legal action against that person. You should never sign anything your employer gives you lightly. Some contracts are like end-user license agreements EULAs , and the courts don't expect you to read them all the way through.

Employer contracts are a different story, and it doesn't matter how long they are. You might also find non-solicitation agreements buried in employee handbooks , stock option and bonus grants, retirement plans, and elsewhere. When you sign your stack of new hire paperwork upon starting a new job, a non-solicitation agreement could be part of it. Many companies require high-level executive and leadership team members to sign non-solicitation agreements.

They may not require lower-level employees to sign. As far as non-solicitation agreements go, read the entire thing yourself and think about whether it's reasonable based on your job description and the conditions above.

If you can accept it, go ahead and sign, but don't be afraid to speak to your HR head or a contract lawyer if you have any questions. If it seems like it goes too far, wait before signing it until you consult a lawyer and don't take no for an answer. Remember that you can negotiate, too. If you work in California, you should almost never have to sign a non-solicitation agreement. There's also something called adequate consideration. This means the employer gave a future employee enough of a warning about the non-solicitation agreement and the other restrictive covenants to back out.

None of the covenants have normal versions, so this means letting the future employee see the agreements before leaving the old job. The only way around this is if signing the agreement gets you a cash bonus and not the job itself. This is why you should be careful and read everything before signing for an annual bonus or stock options. You should also protect yourself by watching what you sign before, during, and after your job.

If you have contacts before you start a job, you should make sure they don't count in a non-solicitation agreement. You should also warn your employer about any other restrictive covenants you've signed. In exchange, your employer's list of customers should never leave the workplace. In the end, you should remember that if a company gives you strict non-solicitation and non-compete agreements, they're mostly hoping you won't try to challenge them.

Knowledge is power, after all, so learn your rights. A restrictive covenant can prevent a former employee from poaching clients by not allowing that former employee to even contact clients on the list. More and more employees across all industries are leaving their company positions to start their own businesses.

As a result, companies must protect themselves from the potential theft of their customers and clients. It often takes lots of effort to build a base of loyal clients, patients, and customers, so companies will want to do everything they can to keep those with whom the business has established trust.

Businesses can't survive without customers, and new business owners will quickly learn the importance of attracting and maintaining loyal clients.

If a former employee of a company has formed relationships with certain companies or customers, it would be easier to contact those customers directly rather than starting at the bottom.

Planet sought to enforce a restraint of trade clause against the first defendant, Ms Dunlop. Ms Dunlop entered into an independent contractor relationship with Planet to provide services as a personal trainer to Planet clients.

A post-agreement three month restraint clause provided that Ms Dunlop would not:. The two companies entered agreements with Ms Dunlop for personal training services and offered discounted membership rates to those persons who she had trained previously, including when she was engaged with Planet. Ms Dunlop subsequently posted various messages on her Facebook page advising her Facebook friends of the various agreements and deals with Genesis. Ms Dunlop's restraint clause required her not to solicit, canvass or secure the custom of any clients of Planet.

However, Justice White held:. In other words, there was no prohibition on Ms Dunlop from entering into an employment contract with Genesis to provide personal training services. Nor was there a restriction on who she could train, so long as those who sought her services were unaffected by solicitation or canvassing efforts and who would have followed her in any event.

Justice White acknowledged that there was a strong prima facie case that Ms Dunlop had solicited or canvassed persons via her Facebook page, for whom she provided personal training services when she was contracted by Planet. In fact, the evidence established that a number of her Facebook friends cancelled their memberships with the plaintiff and signed up for services offered through the gyms of the second and third defendants.

However, the judgment outlined the ongoing difficulties which would arise in granting injunctive relief. One of the main problems identified was the challenge that would be passed onto the second and third defendants, and their employees, to identify which people were being trained by the first defendant as a result of her solicitation or canvassing, and which people were dealing with the first defendant entirely of their own volition.

The issue this raises is that those employed by, and including, the second and third defendants may be held to be assisting in a breach of an injunction, or inducing a breach of contract, on a day-to-day basis. A further difficulty was the effect of an injunction on third parties, namely, those wishing to use the services of the first defendant, who remain unaffected by her solicitation. The problem lay in the fact that there was no evidence identifying which people had knowledge of, or were influenced by, Ms Dunlop's solicitation and canvassing efforts when they engaged her services for training.

An injunction would obviously affect the people who chose, of their own free will, to train with Ms Dunlop. Ultimately, Justice White ruled that:. Different questions might then arise as to the enforceability of such a clause. I think the clause is one directed against soliciting and was not intended to deal, for example, with the case where a former client of his or her own volition wished to continue to use the first defendant as his or her personal trainer.

Orders were made to restrain Ms Dunlop from making further attempts to solicit, canvass or secure the customs of persons who were clients of the plaintiff during the relevant periods, including the removal of offending Facebook posts and prohibiting any new postings on her Facebook page of the kind previously made.

In Barrett , the Court considered whether, when a client of an employer makes the first approach to an ex-employee, Mr Barrett, the ex-employee will be in breach of his contract of employment, where a post-employment restraint clause provides that an ex-employee will not:. Mr Barrett argued that since the client provided the invitation or "window of opportunity" then he could not be guilty of soliciting or canvassing, in breach of his post-employment restraint agreement.

However, the Court of Appeal Justices Sheller and Stein, and Acting Justice Fitzgerald concluded that whether an approach by a client was a "catalyst or trigger" for the solicitation of Mr Barrett does not make him any less the "mover" for the action happening.

So long as a proposal is accepted, soliciting extends to circumstances where a client instigates to reconnect with a former employee. The Court agreed with the decision of Justice Young at first instance and unanimously rejected the submission that "solicit" should be construed in a highly mechanistic fashion, that is, by asking "who made the first approach? One may acknowledge that in most instances the first approach will be made by the ex-employee to the former customer.