Starting a new job is always exciting, especially if you’re leaving a company you weren’t thrilled about working for in the first place. But before you jump ship, make sure you know exactly what you signed on that towering stack of new hire paperwork. Non-solicitation agreements are a common clause that could come back to bite you later.
These tricky contracts say you can’t go back to your old clients or poach your former coworkers when you move to a new company. That might not sound so bad, but it could tank your career if your entire business depends on those long-term relationships you built.
So how do you get out from under these restrictive covenants? Don’t stress — we’ve got your back. We’ll explore smart strategies to safely navigate non-solicitation agreements while keeping your reputation intact.
What Are Non-Solicitation Agreements?
Non-solicitation agreements prevent former employees from unfairly competing with their ex-employer. The contract specifically prohibits reaching out to your former clients or accounts to get their business for your new company. It also blocks recruiting previous coworkers to join your team.
These agreements often get paired up with non-compete and non-disclosure clauses in employment contracts or severance deals. Their goal is to stop you from walking away with critical trade secrets, confidential information, or client relationships you didn’t build independently.
Fortunately, most non-solicitation agreements have time limits, like 1-2 years. But they can still put your livelihood on hold if you rely on those long-nurtured connections.
When Are These Agreements Enforced?
Whether a non-solicitation clause holds up depends a lot on state laws and the specific contract language. Courts tend to enforce these more often than general non-compete agreements since they target narrow activities.
But judges still want to see reasonable restrictions that protect a legitimate business need without being overbroad. Common considerations include:
- Scope of prohibited activities – Does it narrowly ban soliciting or overly restrict your career?
- Length of restricted period – Is the non-solicitation timeframe short and appropriate?
- Access to valuable data – Did you work directly with trade secrets that need protecting?
- Impact on your work – Will this agreement unreasonably block you from earning a living?
- Legitimate need – Does your role impact the company enough to warrant this limit?
- Tailored to your actual duties – Is this agreement overly broad or generalized?
Strategies To Get Around Restrictions
Now let’s get to the good stuff — how do you work around these obstacles when you switch jobs? Here are some savvy tactics to stay in the clear:
- Negotiate narrow terms when first signing if possible. Exclude pre-existing clients and relationships developed independently.
- Ensure proper jurisdiction is called out so it matches where you live and work.
- Challenge enforceability if it seems improperly applied to someone in your role. Not all employees warrant these clauses.
- Comply fully with the non-solicitation period before reaching out to any past clients. Don’t jump the gun while restrictions are active.
- Avoid tapping previous employer resources like client lists to identify future prospects. Build your own clean outreach database.
- Develop independent relationships with your client base outside of work by networking professionally.
- Make general public announcements about your new role without directing them at past clients.
- Wait for past clients to independently reach out rather than initiating contact yourself during the restricted term.
- Consider relocating to a state that limits non-solicitation clauses if possible. Some states like California are very employee-friendly on these agreements.
- If resigning, don’t sign any new restrictive covenants as a condition, but you may comply if resigning in exchange for a severance package.
Soliciting Former Co-Workers
Non-solicitation deals often include additional “no-hire” provisions to stop you from recruiting former colleagues.
There are ethical concerns around poaching valued talent that a company invested in. Plus your old employer could still pursue legal action if they find out you violated a no-hire clause.
The safest approach is to allow past coworkers to independently learn of new opportunities rather than actively pitching them. Discuss joining your team if they reach out first.
Just be aware that key staff might already have non-compete or retention contracts themselves. Consider hiring them initially for roles in non-competing assignments to avoid conflicts.
Other Strategies and Exceptions
A few more angles to think about:
- Review the agreement closely for any loopholes or carve-outs you can use.
- Honor pre-existing client relationships from before you joined the company.
- See if you’re allowed to serve but not directly solicit past clients. Subtle difference but might be permitted.
- Note any specifics of restricted activities versus still permissible ones. Find creative workarounds.
- Seek professional services to review the contract terms and better understand your rights.
- Ensure you received adequate consideration in exchange for signing the restrictive covenants.
- Avoid signing any brand new non-solicitation agreements imposed when resigning. Push back if possible.
- Carefully weigh the ethics of non-solicitation in your particular field or specialty. Do these clauses align with professionalism expectations?
- Document evidence demonstrating why the agreement is unenforceable or improperly applied in your case. Data is power.
- Show how you never accessed truly confidential client or commercial information in your role. Weaken the business need claim.
- Prove minimal client crossover between your old and new employer to limit harm. Small industries might struggle here.
Consequences of Violating Agreements
While the strategies above can help you avoid trouble, know that violating a non-solicitation agreement can come back to bite you. Here are some potential consequences if your old employer proves you breached the contract:
- They may obtain injunctions forcing you to stop prohibited solicitations immediately.
- You could forfeit unpaid bonuses, stock compensation, or other variable pay.
- Expect demands for monetary damages tied to lost business or profit.
- Violating clauses can result in a terminated severance package.
- You may have to cover their legal costs for breach of contract disputes.
- It can also impact your reputation, future career progression, and job options in your field.
- Professional associations may scrutinize ethics concerns leading to censure or loss of credentials.
A few parting lessons on tackling non-solicitation agreements:
- They limit certain activities but are not necessarily complete career barriers if handled properly.
- Enforceability depends heavily on demonstrated reasonableness and legitimate business need.
- With prudent strategies, you can often avoid tripwires and reduce non-compliance risks.
- Seek narrow tailoring of clauses when originally signed, and strictly comply during the restricted term.
- Maintain independent client relationships and use only public job announcements.
- Never tap your old employer’s confidential resources or data for competitive gain.
- Carefully weigh options if non-solicitation is improperly applied to your specific role and duties.
- Consider ethics and professionalism responsibilities before disregarding agreements.
Non-solicitation clauses aim to balance employee mobility and business protections when people switch jobs. With proper preparation and carefully planned steps, they can often be navigated without derailing your career or credibility. Understand the exact restrictions, comply with lawful components, and chart your path in advance. Here’s to new adventures!
Starting a new job is thrilling, especially when you’re ready to move on from a dissatisfying company. But don’t let a non-solicitation agreement squash your momentum. With a balanced approach, you can map out a strategy to adhere to reasonable restrictions while pushing back if clauses go too far. Weigh the risks, know your rights, and move forward, reputation intact. Onward and upward!