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.
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.