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I signed a non-solicitation of employees agreement with my former employer. One of the former employees quit their job....

Littleton, CO |

I have started my own business and this employee has contacted me about working for me. The language in the agreement states:

"During the period of employment and for a period of one year following termination of the employee's employment, employee shall not directly solicit, encourage, or induce any other employees of the Company to terminate employment with the Company or employ or offer employment to any such employee of the Company."

Considering I did not contact this person or induce him to quit his job, am I allowed to legally hire him? Please notice the language of the contract states "employee" it does not say former or past employee?

Attorney Answers 3

  1. You are missing this part "... or employ or offer employment to any such employee of the Company." As is the case with the vast majority of legal questions, those can't be accurately answered based merely off of a few sentences posted on the internet. Here's what will happen if your business is sued (and this is not a slight chance depending on the position of this former employee and their access to certain information). The former employer will move quickly to get an injunction on this action. They will also throw any number of claims against your business depending on trade secret and other issues. The court must review the entire contract terms and the relevant facts. It does not merely look at one clause in isolation. Your job is to be prepared for this and be in the best position for defense and a good offense.

    Now, Colorado court's are rather hostile to these kinds of broad clauses and they often take a very dim view on their application. Again, facts are everything and something as simple as the title of this contract and other facts will be critical to prevent the injunction from being allowed. Better yet, you have an attorney send them a letter in response to the inevitable threat they will send your business. Hopefully that will stop them in their tracks or, if not, it sets a good basis to try to move for attorney fees.

    Whenever--and I mean whenever--you are starting a new business and you have a restrictive covenant from your former employer, you need legal advice to be able to understand the risks. Depending on the history of this employer on moving on these kinds of things, you are doing yourself and your business a huge benefit to get legal advice so you can be prepared and understand the issues and risks. Good luck with your new venture! If your new business has several "partners", I hope you have a complete and well written operating or shareholder's agreement in place.

    This answer is for informational purposes only and is not legal advice regarding your question and does not establish an attorney-client relationship.

  2. Based on the language in the non-soliciation agreement you would be buying yourself a lawsuit by employing this employee during the 12 month period. My colleague is correct. The employee who quit or you could approach the previous employer about allowing a waiver; but if they say no, you are ill advised to hire the person. Talk to a local employment attorney.
    Best of luck.

    NO LEGAL ADVICE GIVEN. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship set forth in a written document executed by the client and by me or a member of my firm. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. My law firm does NOT provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your case. I can give advice, make recommendations and answer specific questions only after reviewing the evidence and documents applicable to a specific client and following a personal meeting in my office in which the relevant facts can be developed and analyzed. My law firm presently accepts cases involving State and federal administrative law; professional licenses and permits; education law; employment and labor law; and litigation matters in state and federal courts. Our practice is limited to the States of Oregon and California. If you have a case in any other state we would not be able to assist you. Unless we have a signed written fee agreement you are not my or my firm's client.

  3. Based upon the quoted language provided you would be well counseled to not hire this person. If you feel that this particular employee's contribution to your company would be invaluable there may be an opportunity for you to request an exception from this non-solicitation. This happens often. I would strongly encourage you to seek the advice of an attorney to address these issues for you.

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