Non-Solicitation Employment Question

I'm currently a consultant working for a sizable technology firm. I wish to purse an opportunity with a client that the firm has previously (5 months ago) done business with. However, I was not involved in this work in any extent. The Non-Solicitation that the client signs reads:

Client agrees not to recruit for employment or hire any employee of Firm or any of its affiliates, or anyone who has been an employee of Firm or any of its affiliates in the past six months, without, in each instance, receiving the prior written consent of Firm.

Our client base at one point or another has included pretty much every company in the area. Does this mean I can't go to work for any of them unless I leave the Firm for 6 months? Or does the term 'Client' come into question as it is not clearly defined... Again, we are currently not doing work with the company I'm looking at.

Thanks for taking the time to read this!

2 answers  |  asked Jun 7, 2007 06:33 AM [EST]  |  applies to Pennsylvania

Answers (2)

Christopher Ezold
The term of the covenant may run from the date the client last did business with your employer.

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, the term of the covenant may run from the date the client last did business with your employer. I agree with Harold Goldner that it's difficult to analyze without reviewing the entire agreement. However, a client who did business with your employer for a few months ten years ago is likely not bound by the covenant today. That is because the covenant must have a legitimate business purpose; mere concern of solicitation is unlikely to be considered a legitimate business purpose. Concern that the customer will use its relationship with your employer's staff is more likely to be considered a legitimate business purpose. Since the client will have no relationship with staff from ten years ago, there may be no legitimate business purpose for preventing the client from hiring your employer's staff today.

This is all speculative and I would need a better understanding of the facts and be able to read the agreement in whole before giving you a reliable opinion.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585

posted by Christopher Ezold  |  Jun 8, 2007 1:55 PM [EST]
Harold Goldner
Non-Compete Covenants

The problem, as you can well imagine, is that I don't have the full contract/covenant in front of me, just the portion which YOU have decided is pertinent. That's not unlike trying to get an orthopaedic surgeon to assess your elbow over the phone, and not permit an examination of the rest of your body.

Generally, and I am speaking about Pennsylvania law, courts will permit an employer to preserve valuable trade assets with a covenent. Restrictions on the use of customer lists, and access to prior clients is generally upheld so long as the duration and geographical scope is reasonable.

Here you're dealing with only 6 months, and it appears to be limited to clients, both existing and prior. On its face, it appears you cannot do what you want to do --- but again, I wouldn't count that 'legal advice' until you actually sit down with a lawyer and the complete language.


posted by Harold Goldner  |  Jun 7, 2007 10:33 AM [EST]

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