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Non-Competition / Non-Solicitation
Non-Competition / Non- Solicitation Services
Non-Compete Reviews and Consultations
Many employment agreements contain Non-Solicitation and/or Non-Competition clauses. These are sometimes enforceable against employees, but often they are not.
A very basic example of a non-solicitation clause is, “Employee shall not solicit the clients of Employer for a period of 12 months after termination of employment for any reason.”
A very basic example of a non-competition clause is, “Employee shall not be employed in the horseshoe manufacturing business in Calgary for a period of 12 months after termination of employment for any reason.”
Courts do not like to enforce non-solicitation and non-competition clauses against employees, because they are what is known as “restraints of trade”: they can prevent labor mobility and can prevent someone from making a living, both of which are undesirable in a generally free society.
As a result, employers are only allowed as much protection with these kinds of clauses as is reasonable in a given situation.
Ask a Lawyer about your Non-Compete Agreement
Generally speaking, courts do not consider it to be “reasonable” to hold lower-level employees to either non-solicitation or non-competition clauses, because the employers are not sufficiently vulnerable to the actions of those employees to justify that sort of protection. Upper management and executive employees can sometimes be held to non-solicitation or non-competition clauses, but even then, only when the clause is drafted narrowly so that the employer does not get more protection than it needs.
Often, if a court determines that a clause was too broad or meant to excessively protect the employer, the court will strike it out and refuse to enforce it. We can help you determine if a non-solicitation or non-competition clause is likely to be enforceable and/or what you can and cannot do.
- If an employee breaches one of these clauses and they turn out to be enforceable, the employee could be sued and could be liable for a substantial sum of money
- Analyzing these clauses and whether they would be enforceable in a given situation is difficult, but it is something the lawyers at Bow River Law are skilled and experienced at
- If you intend to engage in solicitation of former clients, employees, suppliers, etc., and you have one of these clauses in your employment contract or policy manual, give us a call and let us help you understand your rights and risks
- If you intend to compete with your former employer and you have one of these clauses in your employment contract or policy manual, give us a call and let us help you understand your rights and risks
- Even if you do not have these clauses in your employment contract or policy manual, if you intend to solicit or compete you should speak with a lawyer first, because employees have certain obligations to their employer that go beyond the written contract, and you should be aware of those before it is too late
Non-Competition / Non-Solicitation FAQ
- I left my employer. Can I compete with them now?
In many cases, you can compete with your former employer after you leave. This depends partly on whether you have signed a non-competition agreement or non-solicitation agreement, and partly on the position you had with your former employer. Certain high-up positions or client-facing positions have some obligations after leaving an employer, even if they have not signed a non-compete or non-solicit. Even if you signed a non-compete or non-solicit, it might not be enforceable. A skilled and experienced employment lawyer can help you understand your rights on this.
- I want to leave my employer. Can I take my clients with me?
Sometimes you can take clients with you when you leave, but in many cases you cannot. If you make the wrong call on this you could be sued by your former employer, so you should get advice from an employment lawyer before trying this.