The non-solicitation clause
Non-solicitation clause not the same as non-competition clause
A non-solicitation clause is an agreement between an employer and an employee that prohibits the employee from working for customers or business relations of the employer after the end of the employment contract. A non-solicitation clause is similar to a non-competition clause, but it is not the same. The non-competition clause restricts the employee from doing particular kinds of work after the end of the employment contract. The non-solicitation clause does not include a restriction of this kind, but it prohibits the employee from performing those activities for the customers or business relations of his/her former employer.
Non-solicitation clauses: many forms
Non-solicitation clauses come in many different forms. They can involve a prohibition on working for all customers or business relations of the employer, but they can also relate to only a few customers. A non-solicitation clause can also include a prohibition on maintaining contacts with the customers and business relations of the employer after the end of the employment contract. For example, a judge hearing an application for interim relief in Arnhem in March 2011 ruled that an employee who accepted a customer of his former employer as a connection on LinkedIn after the end of his employment had violated his non-solicitation clause. So it can be advisable to consult an employment lawyer or another specialist in the field of employment law beforehand.
Non-solicitation clause with limited duration
A solicitation clause is often operative for a particular period (for example one or two years), and sometimes it is agreed that the employee must pay a penalty if he/she infringes the non-solicitation clause. The judge can moderate both the period for which the non-solicitation clause is valid and the size of the penalty. Your employment lawyer at AMS Advocaten can give you legal advice on this.
Non-solicitation clause in writing?
It is not entirely clear whether a non-solicitation clause – like a non-competition clause – must have been agreed in writing. Judges interpret this differently. To be on the safe side, it is therefore important for an employer to always agree the non-solicitation clause in writing, in other words in the employment contract. If the employee moves to a different group company, it is important to get the employee to sign the non-solicitation clause again.
Social media provisions
The use of social media has become part and parcel of everyday life. However, the use of social media regularly results in court cases. It is therefore advisable for employers to include a good social media clause in the employment contract. This can cover everything to do with the use of Twitter, Facebook, LinkedIn, etc.
Lawyer for non-solicitation clauses
The employment lawyer at AMS Advocaten in Amsterdam has extensive experience of handling disputes in the area of non-solicitation and non-competition clauses and assists both employers and employees in such matters. If a question like this is at issue for you, the AMS employment lawyer will be pleased to provide you with legal advice.