What are non-Solicitation Clauses in Employment

Contract?

A non-solicitation clause in an employment contract serves the purpose of protecting a company by placing restrictions on an employee during their term of employment and after it has ended. This clause prohibits an employee from having any employment-related interactions with clients, vendors and employees outside the scope of their work, during and following their term at the workplace.

In order to have an enforceable non-solicitation clause, there are a few rules to follow. The clause must be reasonable in protecting one’s business and not placing unrealistic restrictions on an employee. The clause must also be clear and not ambiguous, by clarifying what is precisely expected from the employee. Certain elements that must be made clear are the specific activity an individual is restricted from engaging in, the time period and the geographic limitations.

An example of a clear non-solicitation clause could be listing which clients the individual is restricted from working with following the end of their term at the workplace. Another example that may be listed in the clause is the specific time period following an employee’s end at a workplace, during which they cannot have work- or business-related interactions with clients they had worked with before.

For this reason, it is essential for an employment contract to consist of clauses that explicitly state what is required of an employee. It is also important for the clause not to be over-demanding and unrealistic. By ensuring the non-solicitation clause is clear, concise, realistic and specific, they are easier to be enforced in the court of law and are also more comprehensible by employees. The ultimate goal is for a business to be protected rather than excessively placing restrictions on employees.

The timing of drafting a non-solicitation clause in an employment contract is very important to consider. While aiming for precision for the clause to be enforceable in court, one must understand that a court is not responsible to make changes to the clause. Evaluating all the angles from which a business may be harmed in the hands of an employee before hiring them is imperative. Planning ahead would protect the business from potential future harm, meanwhile trying to draft a non-solicitation clause during an employee’s partition from the company would not be of much use.

When drafting an employment contract, it is essential to understand the difference between a non-solicitation clause and a non-competition clause. While a non-solicitation clause specifies which clients a former employee may not have any business relationship with, a non-competition clause generally restricts the former employee from having a business relationship with any clients from their previous workplace. Due to the broad application of clients in non-competition clauses, they are more difficult to be enforced by a court.

When drafting an employment contract, it is important to follow the rules mentioned above in order for the contract to be enforceable in court. Our lawyers at Tailor Law Professional Corporation may provide you with the legal guidance and assistance you may need. If you have any questions, please do not hesitate to contact us at 905-366-0202, or visit our website here.

Sources :

https://www.fasken.com/en/knowledge/2019/06/hr-space—are-your-non-competition-and-non-solicitation-clauses-enforceable/

https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/global-ontario-restrictive-covenants.aspx

https://employmentlaw101.ca/when-a-non-solicitation-clause-is-actually-a-non-competition-clause/

https://employmentlaw101.ca/when-a-non-solicitation-clause-is-actually-a-non-competition

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