Creating Enforceable Non-Solicitation Agreements

By Attorney Edward Jesson

In the employer/employee relationship, non-compete agreements get a lot of attention, but non-solicitation agreements should not be ignored. Non-solicitation agreements are agreements either to not to solicit a business’s customers or its employees.  Employees could be asked to sign these agreements as well as other businesses.  If the latter, courts will generally allow businesses to contract with one another how they see fit. However, courts closely scrutinize non-solicitation agreements that a business asks an employee to sign.

The purpose of a non-solicitation agreement is to ensure that a former employee cannot steal the employer’s customers or poach the employer’s current employees to go and work for a competitor. In order for a non-solicitation agreement to be enforceable, it must be: (1) in writing; (2) part of an employment contract; (3) based on valuable consideration; (4) reasonable as to time and territory; and, (5) designed to protect a legitimate business interest. These factors are very similar to what courts look at when evaluating non-compete agreements, but, generally in North Carolina, non-solicitation agreements are easier to enforce.

The “in writing” and “part of an employment contract” prongs are easy to satisfy. Furthermore, courts in North Carolina have routinely held that non-solicitation agreements protect a legitimate business interest. The “valuable consideration” and “reasonable as to time and territory” prongs are where people often get tripped up.  Valuable consideration is generally the job itself (meaning the non-solicitation provision is included in the employment contract at the very beginning as a condition of taking the job) or it can be in the form of a raise after the fact.

Courts look at the time and geographic scope limitations in conjunction with each other. For example, a longer period may be permissible if the geographic coverage is small. Two years is generally held to be enforceable, though longer periods have been held enforceable under unique circumstances. As to geographic scope, courts will usually look to: (1) the area of restriction; (2) the area assigned to the employee; (3) the area where the employee actually worked; (4) the area in which the employer operated; (5) the nature of the business involved; and (6) the nature of the employee’s work duties and knowledge of the employer’s business operation. Additionally, courts in this state will only prohibit the former employee from soliciting customers with whom the employee had contact with or had intimate knowledge of during their former employment.

If a former employee violates the agreement, the business can seek an injunction (a court order prohibiting the employee from further breaches); compensatory damages (such as lost profits); and, in egregious situations, treble damages (three times the compensatory damages).  Businesses may also write liquidated damages clauses into the contract that sets the amount of damages up front. However, these are also carefully scrutinized by the court so it is important to make sure that any liquidated damages provisions are properly drafted.

If you need assistance in drafting, reviewing, or enforcing a non-solicitation agreement that you believe an employee has breached, the attorneys at Jesson & Rains are available to assist.