Non-Solicitation Agreement on black paper with pen.

How Enforceable is a Non-Solicitation Agreement?

By Thomas McKinney

There are several different restrictive covenants that you may find in an employment agreement in New Jersey. A covenant not to compete is one. A non-disclosure covenant is another. You may also find a non-solicitation covenant. New Jersey law may disfavor covenants, generally speaking, as they can be seen as undue restrictions on trade, but New Jersey Law also recognizes that a properly tailored restrictive covenant can be important to protecting an employer’s legitimate business interests. So, how enforceable are non-solicitation agreements in New Jersey? Read on to learn more.

How Enforceable is a Non-Solicitation Agreement?

A non-solicitation agreement is one that restricts the former employee of a company from participating in the following for a select time period:

  • The solicitation of business, including clients and customers, from a former employer
  • The solicitation of employees from a former employer to become employees of the former employee’s current employer
  • The conducting of business with business partners and referral sources, among others, of the former employer

A non-solicitation agreement may be separate or it may be included as a clause in an employment agreement. In either event, close attention should be paid to the terms of the non-solicitation clause or agreement. The details of the non-solicitation agreement will be important in determining whether it may be enforceable or not later on. Non-solicitation agreements can be a legitimate way for an employer to prevent a former employee from seeking to recruit other employees of the former employer as well as clients and customers of the former employer. This is why non-solicitation agreements are also commonly referred to as “anti-raiding” clauses.  To be enforceable, however, a non-solicitation agreement must be reasonable and there will be a balancing of the employer’s interests as well as an employee’s rights when New Jersey courts consider the enforceability of agreements as a matter of law.

You see, New Jersey law looks skeptically upon non-solicitation agreements and other restrictive covenants. State courts will be hesitant to enforce such restrictive covenants because of the possibility that they are placing an undue and illegitimate restraint on trade. Non-solicitation clauses will be enforceable, however, in the event that an employer can demonstrate a legitimate and protectable business interest. More specifically, a non-solicitation agreement will be considered enforceable if it protects a legitimate business interest of the employer, does not impose an undue hardship on the former employee, and is not injurious to the public interest. If a non-solicitation agreement fails to uphold any of these requirements, it will be deemed invalid and, therefore, unenforceable.

New Jersey Employment Law Attorneys

Have you signed a non-solicitation agreement or are being asked by your employer to sign a non-solicitation agreement? Before doing so, consult with the knowledgeable employment law attorneys at Castronovo & McKinney about your rights and whether such an agreement would be an undue restriction on your rights. Contact us today.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.