How to Hire a Fired Employee Under a Non-Solicitation Clause
A non-solicitation clause does not prevent you from hiring an employee, but it can restrict the work he can perform for your company. Non-solicitation clauses only prevent an employee from contacting other employees or customers gained through a former employer and asking them to follow him to his new employer. In some states, such as California, broad non-solicitation agreements are unenforceable because the California courts say they restrict a citizen's right to seek lawful employment. In all states, you can hire a fired employee with a non-solicitation contract as long as you do not allow him to solicit former colleagues or customers.
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Instructions
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Read the employee's contract carefully. Non-solicitation clauses must have a time limit. If the clause states no solicitation for 12 months and it is more than 12 months since the former employer fired the employee, the clause does not apply anymore. The time limit began at the firing of the employee, not at your hiring date.
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Ask the prospective employee about the reasons behind his firing. Missouri is an example of a state that typically will not enforce a non-solicitation clause if the employer fired the employee without just cause.
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Talk with the applicant about his relationship with former customers and colleagues. Typically, courts rule that non-solicitation agreements do not apply to friends and family. If the applicant has relationships with customers or colleagues outside of the business and a discussion of your firm happens in a non-work setting, the former employer has no basis for a lawsuit.
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Consult an attorney or your state's labor department to determine the laws in your state. Since the laws differ in each state, talk to a lawyer before hiring the applicant if you have any confusion about the enforceability of the contract.
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Hire the applicant as you would normally hire any employee. If you have concerns about the non-solicitation clause with the employee's previous employer, do not allow him to contact former clients or colleagues about your company until the contract expires.
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Tips & Warnings
A court will typically enforce a legal non-solicitation agreement.
References
- Phillip J. Griego & Associates; Broad Non-soliciation Clause is Unenforceable; Robert E. Nuddleman; June 26, 2007
- Tim's Missouri Employment Law: Miscellaneous Comments and Tips and Traps About Non-compete, Non-solicit Trade Secret and Confidentiality Issues
- "Registered Rep"; Escaping Non-solication Agreements; William A. Jocobson
