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AZ non-solicitation and advising clients of departure

Chandler, AZ |

I have an (unsigned) clause added in an at-will employee manual that states employee may not solicit work from any current or past client of company for period of one year after resignation. Upon resignation, I plan to email or call some clients to advise them that I have resigned from the company to open my own firm, to state that they are my former company clients and that I am NOT asking for their business but I would appreciate any new potential references, projects, or clients that are not, or never have been, clients of my former company. Is this contact a breach? What if former clients contact me about new work - am I free to share my 1-year non-compete and state after this period I would love to work with them? Is this a breach because I reveal company policy?

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Attorney answers 1


There is a lot going on with your question. First, the restrictive covenant (the non-solicitation clause) may not be enforceable. You only mention a temporal must include a geographical limitation as well. Otherwise it is unenforceable on its face. Also, many employee manuals state that they are not employment agreements. Unless you have an employment contract that states you agree to be bound by the non-solicitation clause, it may be unenforceable for that reason. Second, what counts as solicitation is a tricky area of the law to navigate. The procedure you propose seems safe, but some courts have held that even informing clients that you are opening your own firm is solicitation. Third, you mention a non-compete. Is there a non-compete clause as well?

I'd recommend contacting a lawyer who will take a look at your employment agreement (if there is one), the employee manual and then advise you more completely.

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