The contract is specific that there is to be no solicitation of customers, it goes on to say" Employee shall not procure orders or do business with any customers for one year" This is a medical practice and the contract is very specific about the types of services my wife cannot offer. So the question is, if these customers seek my wife's services out unsolicited and see her for services not available at her former employer, is there any violation? Can you legally enforce this situation? The patient should have the right to seek the health professional of their choosing?
I cannot answer the question as you framed it outside of the attorney-client relationship, which you and I do not enjoy. Nonetheless, I would like to give you some general guidance.
Courts view non-competes with disfavor and that in some circumstances they are not enforceable. However, their enforceability turns on a host of variables. The broad rule in this area is that the restrictions of the non-compete must be reasonable. That reasonableness principally turns of the temporal length of the restriction, the geographical breach of the restriction, the degree of skill in the job, and the fairness of the process in reaching the non-compete agreement, but there are more variables than just that.
From the information that you have posted here, it sounds like the non-compete at issue is fairly specific and limited to one year. These facts tend to weight in favor of the reasonableness of the non-compete.
Your question, though, focuses on whether the non-compete would be breached by performing unsolicited services that are not offered by your wife's current employer. My answer to that question is "quit possibly," but I cannot answer that without actually reviewing the entire agreement and speaking with your wife. The verb "procure" seems to be fairly broad.
These are complicated legal issues that need to be thoughtfully addressed before anyone can tell you whether or not the non-compete will be enforced against your wife. Of course, there are important normative questions as well about whether or not your former employer would even want to begin asserting the agreement against you.
The bottom line is that if you are really worried about this situation, you should consult an attorney. You should be able to find many good lawyers here on Avvo that offer a free initial consultation, as I do.
I hope that the information in this answer helps provide some initial guidance. If so, please do not forget to rate the answer as helpful. If not, I am happy to answer follow up questions in the comments here.
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Employment / Labor Attorney
Mr. Kennedy provides a very good answer. Whether a non-compete provision is enforceable does indeed require a careful evaluation of multiple factors. Your time and money would be well spent consulting in person with an employment lawyer on this issue. Good luck.
My answers to questions posted on AVVO are intended to provide general information only, and are not intended to be legal advice. Employment law issues typically require a careful case-by-case analysis. Consequently, if you feel that you need legal advice, I would encourage you to consult in person with an employment attorney in your area.
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General Practice Lawyer
My colleagues gave excellent responses here.
In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.
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