Employee Non-Solicits: Drastic Times Call for Drastic Measures or Maybe Just an Old Faithful Will Do?

Ask any employment lawyer the most frequent conversation they are having with clients—my money is on the topic of labor shortages. The ability to attract, hire and retain talent is challenging, dare I say downright impossible, right now without hardly a caveat for type of position, geographic location, type of employer and the list goes on. Of tools, do not overlook the value and power of employee non-solicitation agreements. 
 
Often employers use (and focus) on employee non-compete restrictions post separation of employment. Such a restriction might prohibit an employee from working for a competitor for a limited time and within a certain geographic restriction. Certain states no longer permit employee non-compete restrictions or have severely restricted their use. Where legally permissible, courts are often hesitant to enforce a restriction that might prohibit a person from earning a living, even where the non-compete restriction is narrowly tailored and legally compliant. 
 
Employee non-solicitation agreements, however, are a more palatable enforcement option.  Mechanically, an employee non-solicit exists in the same way as an employee non-compete – an employee must specifically agree to the restrictions in writing in exchange for something of value such as continued employment, increased comp or different working conditions. An employee who makes such a written affirmation agrees to refrain from soliciting employees for a narrow amount of time after the employee departs the company. 
 
Hiring can be like dating—there are a bevy of social media apps for both, but the best option is a known relationship, a friend of a friend. In a time of increased competition for talent and heightened scrutiny by employees, an employee non-solicit effectively eliminates the opportunity for an employee to say the grass is greener at the employee’s new employer and lure their friends and former co-workers away.
 
Notably, an employee non-solicit does not necessarily restrict the new employer’s hiring, but rather the former employee cannot actively engage their known professional connections from their former company. An employee non-solicit also does not restrict where an employee can work, which is the key to broader enforcement opportunities for non-solicits.
 
For these reasons, employee non-solicits are an effective way to discourage employee raiding by former coworkers. Employers should carefully consider what the law requires to create an enforceable employee non-solicit, and your Labor and Employment team at Ice Miller or Catherine Strauss, a partner in Ice Miller’s Labor and Employment practice, can help.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.