Executive Non-Solicitation Agreements
Before beginning your employment, or at any time during your employment, your employer may ask you to sign an agreement containing restrictive covenants. Restrictive covenants often include:
- non-solicitation provisions,
- non-competition provisions, and
- confidentiality and trade secret provisions.
Can my employer require me to sign a non-solicitation agreement?
In Ohio, employers can require employees to sign a non-solicitation agreement at any time. There is no requirement under Ohio law that your employer provide you with something of value, aside from continued employment, in exchange for requiring you to sign a non-solicitation agreement.
Before signing an agreement containing a non-solicitation provision, it is important to consult an attorney to understand the possible consequences of doing so. These agreements can have a significant impact on your ability to work in your chosen profession in the event that your employment is terminated or you decide to resign.
Employers may have legitimate reasons for asking an executive to sign a non-solicitation agreement, but as a prospective employee, you also have compelling reasons to negotiate these terms in your employment contract. Mansell Law’s employment attorneys can assist you with these negotiations. We will review all circumstances of your situation, discuss the law, and provide advice and guidance to help you navigate the conversation with your prospective employer.
Mansell Law’s employment attorneys can also assist you with understanding your rights in the event that you have already signed a non-solicitation agreement. If you are pursuing employment with another company and you are concerned this transition may implicate your non-solicitation restrictions, you should contact an attorney before making any decisions. Learning about the law and evaluating your risks before taking any action will allow you to minimize the risk of litigation.
On the other hand, if you have already received a cease-and-desist or a lawsuit has been filed against you, it is important to contact an attorney right away. Hiring legal counsel right away can make a big difference in the outcome of your case.
Are non-solicitation agreements enforceable?
Under Ohio law, Courts will only enforce a non-compete agreement to the extent that it is reasonable and necessary to protect the employer’s legitimate business interests. An employer has the burden of proving a non-solicitation agreement is reasonable and enforceable. Specifically, an employer must demonstrate that the terms of your agreement: (1) are no greater than necessary to protect its legitimate business interests, (2) do not impose an undue hardship on you, and (3) are not injurious to the public. The first two elements require your employer to demonstrate that the interest in protecting the business outweighs the employee’s interest in earning a living in his or her chosen profession. Courts consider numerous factors when evaluating whether your employer has met this requirement, including:
- The geographic and time limits placed on the non-compete;
- Whether you were the sole or primary customer contact while you were employed;
- Whether you possess any confidential information or trade secrets;
- Whether the non-compete agreement seeks to restrain unfair competition or simply ordinary competition;
- Whether the non-compete seeks to stifle your skill and experience level;
- Whether the non-compete restricts your sole means of support; and
- The typical standards for non-compete agreements in your industry
Additionally, the court considers whether enforcing the terms of your agreement would cause harm to the public and third parties.
Mansell Law’s employment attorneys can help you understand whether the terms of your non-solicitation agreement will likely be upheld by a court and be enforced against you. These situations are very fact-dependent and a full evaluation of your situation is required to assess the risk to you. If you have questions about your non-solicitation agreement, contact Mansell Law’s employment attorneys.