Legal Question in Business Law in California

Is a contract prohibiting clients from hiring subcontractors enforcable?

My former employer had me sign a Non Competition Agreement (which I understand is unenforcable). When he realized this fact, he took a different tack and wrote up contracts for his clients that include a clause prohibiting them from hiring any of the employer's employees OR subcontractors (of which I am now one). Is this enforcable?


Asked on 2/17/03, 2:55 pm

2 Answers from Attorneys

H.M. Torrey The Law Offices of H.M. Torrey

Re: Is a contract prohibiting clients from hiring subcontractors enforcable?

non-competition contracts are tricky business often times because of the ramifications associated with unduly restraint on trade. i would have to see a copy of the contract you mentioned to let you know if its enforceable or whether or not you may have standing. if you want further assistance, contact me directly.

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Answered on 2/17/03, 3:00 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Is a contract prohibiting clients from hiring subcontractors enforcable?

I would say the courts would not enforce this provision unless there were a sound business reason for it, other than restraining competition.

However, this does not mean you can compete with impunity. Your position as a contractor probably makes you privy to 'trade secrets' such as customer needs that you found out about as a result of your emloyment or contracts, and the employer will allege misappropriation and might win, independent of his probably-unenforceable contract.

People who leave to compete against former employers walk a fine line. While they have an absolute right to pursue any legal occupation in competition with a former employer, information gathered while in the other's pay is protected as a 'trade secret,' and it doesn't have to be the recipe for Coca-Cola; just about any info on needs, preferences, etc. of a customer may qualify for protection against departing employees or independent contractors.

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Answered on 2/17/03, 5:09 pm


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