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I'm Robert Wood, a Texas litigation attorney. I’ve spent nearly the entirety of my 25+ year career drafting and analyzing non compete agreements. I use this blog to help Texas employers and workers understand the common misconceptions surrounding the enforcement of non-competes in Texas. If you have questions, please don’t hesitate to shoot me a message or give me a call at 469-754-2812.

Non Solicitation Agreements in Texas

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What is a Non Solicitation Provision?

Texas non solicitation provisions (aka. non-solicitation clauses) prohibit the employee, both during employment, and for a period of time thereafter, from soliciting the employer’s clients, employees, or both. Texas non-compete agreements frequently contain non-solicitation provisions.

But whether a particular act or communication constitutes solicitation is not always clear.

“Solicitation” Defined

So, what does it mean to “solicit”? One court defined it this way:

‘Solicit’ . . . means: ‘To appeal to (for something); to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving . . . .'” By contrast, “[m]erely informing customers of one’s former employer of a change in employment, without more, is not solicitation.”

Thus, under this definition, informing your former employer’s customer that you have changed companies (which allows the customer to suggest continuing to do business with you) arguably does not constitute solicitation.

Conversely, calling the customer and urging him to do business with your new company arguably would.

Of course, there is no guarantee that every court will view solicitation in that way, and every case must be decided on its own merits, but this definition is helpful in understanding the difference between actively soliciting a customer and merely providing him with information.

Provisions prohibiting the solicitation of customers are treated as covenants not to compete (and thus must meet the requirements applicable to all noncompete agreements). Unlike disclosing the employer’s confidential information (which is legally actionable, even without an express agreement by the employee that he will not do so), soliciting the employer’s customers constitutes fair competition (unless done via a theft of the employer’s trade secrets, a breach of fiduciary duty, etc.), and thus is not actionable unless prohibited by a valid covenant not to compete.

Because the scope of a covenant must be reasonable, a provision prohibiting a salesperson from soliciting any of his former employer’s customers might be unreasonable (and might have to be reformed), but a provision restricting the employee from soliciting customers with whom he personally dealt would be relatively more enforceable.

Enforceability of Non-solicitation Clauses in Texas

August 22, 2016 / By Robert Wood
Articles // Non Solicitation Agreements in Texas

Are Non-solicitation Clauses Enforceable in Texas? The answer is, they can be, but, like noncompete agreements, they must comply with the statutory requirements against unlawful restraints on trade. Just like a noncompete provision (which keeps an employee from having a certain type of job), a non-solicitation provision (which keeps an employee from soliciting his former…

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In Texas, Nonsolicitation Provisions Must Be Reasonable

March 5, 2014 / By Robert Wood
Articles // Non Solicitation Agreements in Texas

Even though noncompete and nonsolicitation provisions generally are enforceable in Texas, they must be reasonable in scope. In a recent case from the Fort Worth Court of Appeals, the court held that a provision prohibiting solicitation of employees was too broad and, therefore, unenforceable. The provision in question prohibited the employee, for a two-year period,…

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Enforcement of Non-Solicitation Agreements in Texas

April 17, 2010 / By Robert Wood
Articles // Non Solicitation Agreements in Texas

A recent appellate case from Houston demonstrates that, in determining whether non-solicitation agreements are enforceable, Texas courts treat them as non-compete agreements. In the case, an insurance broker was bound by an employment agreement that contained the following provision: Accordingly, the Executive understands and agrees that for a period of two (2) years following the…

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Permissible Scope of Nonsolicitation Agreements in Texas

April 16, 2010 / By Robert Wood
Articles // Non Solicitation Agreements in Texas

Not infrequently, non-solicitation agreements that employers require their employees to sign are extremely broad. These provisions often preclude the employee from soliciting all of her former employer’s customers. Sometimes, the provisions also preclude the employee from soliciting her former employer’s potential customers. A recent case involved the following non-solicitation provision: Accordingly, the Executive understands and…

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Non-solicitation provisions must bear relation to employees’ activities

March 23, 2009 / By Robert Wood
Articles // Non Solicitation Agreements in Texas

A recurring issue in employee mobility cases is the extent to which a non-solicitation provision in an employment contract is enforceable. Typically, an employment agreement will contain a provision prohibiting post-employment competition, provisions prohibiting post-employment solicitation of customers and/or employees, or both. It’s not uncommon for a provision prohibiting solicitation of employees to apply to…

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