In drafting noncompete agreements, employers and their lawyers often drafting language that prohibits a former employee from soliciting the customers or clients of the employer. The problem is this language often does not go far enough to protect the former employer.

This scenario occurred in a recent case we handled for an employee. He was prohibited from soliciting the customers of the former employer. The question bolied down to whether the employee solicited a former customer by accepting employment with the former customer.

Although there were other factors bearing on the case, the court ruled that responding to an employment advertisement was not a solicitation that would prohibit the former employee from working with the former customer.

This same situation has occurred in circumstances where a former customer of an employer initiates contact with a former employee rather than the former employee initiating the sales contact with the customer. In those instances, if your noncompete agreement merely prohibits solicitation, your business will not likely receive the protection it desires and the employee may be permitted by a court to work with that customer.

The better approach is to indicate in your agreement that the former employee may not become employed by, work with, or accept business from the former customer in any way. Just like a coin there are two sides to worry about: 1) the former employee’s actions; and 2) the former customer’s actions. A prohibition against the employee’s solicitation only protects 1/2 of the coin.