Legal Question in Business Law in California
Non-Solicitation Agreement
Three years ago, I had signed an Employee Agreement that included a Non-Solicitation clause with ''Company A''. Primarily, the clause states that during employment with ''Company A'' and for a 6 month period afterwards, you cannot knowingly solicit any other employees to leave the services of ''Company A''. Within the last couple of months, a group of us discussed that it was evident that layoffs would be eminent and possibly company shutdown as the only customer (Company ''B'') has no plans on renewing their contract. Well, I was laid off and was able to find work with ''Company B''. Others still working for ''Company A'' asked if I would give ''Company B'' copies of their resume in hopes that there would be positions available for them once the contract expires. I did that and ''Company B'' is interested in hiring them AFTER the contract expires with ''Company A''.
Is this a violation of the Non-solicitation clause?
2 Answers from Attorneys
Re: Non-Solicitation Agreement
I question whether the nonsolicitation clause is even legally enforceable, but this would require further legal research. It is also difficult to provide specific guidance without actually being able to reach the entire contract.
Even if enforceable, I do not see how you have "knowingly solicit[ed] any other employees to leave the services of ''Company A''
Your former coworkers sought you out. From what you described, you have not actively recruited the employees on behalf of Company B. You were a conduit of information, no more, no less. I don't see a problem with your conduct to this point.
Re: Non-Solicitation Agreement
There are conflicting authorities on the enforceability of covenants against raiding the former employer's employees. To be on the safe side, I would say that the covenant in the contract covering you is probably enforceable. On the other hand, merely forwarding resumes does not seem to rise to the level of active solicitation that would make you liable for damages if sued. If it were proven in court that you actually encouraged these former co-workers to apply, the result could be different.
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