Is this non solicitation clause enforceable? How can i avoid it?

[ibrahimali]

I am hired at a Company (contractor) which offers services to a Client. The Client wants to hire me. However, I an worried about the following clause on my contract with Company:

"Non-Solicitation
While you are employed with us and for one year after your employment with us terminates, you will not
solicit either directly or indirectly any client, employee or supplier of the company or direct any client,
employee or supplier away from the company. Client, employee and supplier refer to persons,
corporations or other entities that are or were clients, employees or suppliers of Company at any time during
your employment with us.
If any part of this section is determined to be legally void or unenforceable due to the period of time or
otherwise, this section may be amended as necessary so that this section is enforceable at law."

How can this affect my employment with client? How can I sort this out to be employed with client? Can I apply to Jobs on with Client?

Please note I live in Alberta, Canada

 

[Zigner]

This forum is for US law matters only - sorry.

 

[cbg]

Employment law in Canada and in the US is not the same and is, in many cases, in fact quite different. We have one responder here who is able to answer questions on Canadian law and I'm sure she will do what she can when she gets here. But your options for responses here are limited for that reason.

 

[Zigner]

The OP doesn't appear to be an "employee" - rather, the OP is a contractor. This is contract law, not employment law.

 

[quincy]

ibrahimali will need to have an attorney licensed to practice in Alberta review the contract to determine its enforceability.

I agree with Zigner that this is not an employment law question.

 

[cbg]

eerelations may still have some thoughts on the matter. I'm willing to bet she's dealt with the odd IC in her career.

 

[Zigner]

To be fair, while she may be familiar with contracts relating to IC's, that would bring us to the next part of the problem: Contract review is beyond the scope of this forum. The OP would be wise to seek local legal counsel for a full review of the contract.

 

[eerelations]

Based on what OP has posted, this appears to have nothing to do with solicitation of a client. The client in this case may have a non-sol agreement with the employer, which would prevent the OP from being hired by the client. But there´s nothing in this agreement - and it's a pretty standard agreement, like a template - that says OP cannot apply for jobs with the client. OP needs to find out exactly what his employer's agreement with the client says before he gets his hopes up about working for the client.

 

[ibrahimali]

Based on what OP has posted, this appears to have nothing to do with solicitation of a client. The client in this case may have a non-sol agreement with the employer, which would prevent the OP from being hired by the client. But there´s nothing in this agreement - and it's a pretty standard agreement, like a template - that says OP cannot apply for jobs with the client. OP needs to find out exactly what his employer's agreement with the client says before he gets his hopes up about working for the client.

thank you for the good point. The client and my company do not have any clauses that prevent hiring. It is only the clause in my contract with my company that affects the situation.

 

[eerelations]

thank you for the good point. The client and my company do not have any clauses that prevent hiring. It is only the clause in my contract with my company that affects the situation.

OK, if your company and its client don't have any agreements about not hiring your company's employees and/or ICs (and I must say this would be pretty darn weird but OK if you've read these contracts you must be right), then you are prohibited from working for the client unless your company says you can. If you want to work for the client you must get the company's permission first. The only way you might get out of this is if you leave your company, wait a year, and then start working for the client.

For my Esteemed Colleagues' edification, while non-compete clauses in Canada are generally not enforceable just as they are not enforceable in the US, sometimes they are enforceable in Canada. If the clause restricted OP's ability to do the work he/she is trained for at any other employer within a reasonable commute distance from the OP's home, that would be non-enforceable. If the clause restricted the OP's ability to do the work he/she is trained for at suppliers and competitors etc. who are within a reasonable commute distance of the OP's home, that would only be enforceable if there weren't any other employers within a reasonable distance of the OP's home. And the one-year thing? That's enforceable only if it falls within one of the enforceability categories described here.

 

[ibrahimali]

OK, if your company and its client don't have any agreements about not hiring your company's employees and/or ICs (and I must say this would be pretty darn weird but OK if you've read these contracts you must be right), then you are prohibited from working for the client unless your company says you can. If you want to work for the client you must get the company's permission first. The only way you might get out of this is if you leave your company, wait a year, and then start working for the client.

For my Esteemed Colleagues' edification, while non-compete clauses in Canada are generally not enforceable just as they are not enforceable in the US, sometimes they are enforceable in Canada. If the clause restricted OP's ability to do the work he/she is trained for at any other employer within a reasonable commute distance from the OP's home, that would be non-enforceable. If the clause restricted the OP's ability to do the work he/she is trained for at suppliers and competitors etc. who are within a reasonable commute distance of the OP's home, that would only be enforceable if there weren't any other employers within a reasonable distance of the OP's home. And the one-year thing? That's enforceable only if it falls within one of the enforceability categories described here.

thank you for the detailed answer and effort.

Considering that no geographical limit was set by the clause, can we say it is not enforceable?

What would happen if I join the client without getting permission? would I just get a notice that I can not do that or would I get a fine or what?

Would a verbal discussion between me my supervisor followed by email from me qualify as the permission? what contents should such an email have?

Thank you again very much for your answer

 

[quincy]

OK, if your company and its client don't have any agreements about not hiring your company's employees and/or ICs (and I must say this would be pretty darn weird but OK if you've read these contracts you must be right), then you are prohibited from working for the client unless your company says you can. If you want to work for the client you must get the company's permission first. The only way you might get out of this is if you leave your company, wait a year, and then start working for the client.

For my Esteemed Colleagues' edification, while non-compete clauses in Canada are generally not enforceable just as they are not enforceable in the US, sometimes they are enforceable in Canada. If the clause restricted OP's ability to do the work he/she is trained for at any other employer within a reasonable commute distance from the OP's home, that would be non-enforceable. If the clause restricted the OP's ability to do the work he/she is trained for at suppliers and competitors etc. who are within a reasonable commute distance of the OP's home, that would only be enforceable if there weren't any other employers within a reasonable distance of the OP's home. And the one-year thing? That's enforceable only if it falls within one of the enforceability categories described here.

The clause is a non solicitation agreement not a non compete agreement. The contract needs to be read in its entirety and not analyzed on one clause pulled from the contract.

I respect your knowledge of Canadian employment law, eerelations, but this is contract law and it seems the contract with the non solicitation clause, and the facts of ibrahimali's employment, need to be personally reviewed by an attorney in Alberta.

 

[ibrahimali]

The clause is a non solicitation agreement not a non compete agreement. The contract needs to be read in its entirety and not analyzed on one clause pulled from the contract.

I respect your knowledge of Canadian employment law, eerelations, but this is contract law and it seems the contract with the non solicitation clause, and the facts of ibrahimali's employment, need to be personally reviewed by an attorney in Alberta.

what is the difference between non compete and non solicitation clause?

 

[quincy]

You can search for Alberta's "Capio case" or 1059028 Alberta Ltd v. Capio Oilfield Services, 2016 ABQB, for the Court's distinction between the two.

And then you should seek out assistance in Alberta. The laws are different in the US and this forum, as a rule, only handles US law questions.

We are lucky to have eerelations as a member because eerelations has a good working knowledge of Canadian employment law. But no one on this forum can assist you with your specific contract questions. That requires a personal review by an attorney in Alberta.