Businesses have long relied upon employment contracts to clarify their expectations of employees. From describing roles and responsibilities to benefits and workplace rules, these documents have been invaluable for protecting both the employer and the employee. However, changes in technology have made some key provisions of these contracts much more difficult to enforce, and this is particularly true when it comes to clauses surrounding non-solicitation.
Non-solicitation rules are specifically designed to protect a business from having former executives or employees either recruit personnel or solicit clients to a new venture. The reasons are obvious: It can be devastating to have an individual who has established rapport with customers to leverage that relationship to bring business to a competitor, or to lure employees to leave. However, the emergence of digital media has made proving and enforcing rules against non-solicitation extremely challenging to enforce.
Here are a few reasons why:
- New communication channels, including messaging, social media, and professional networking platforms like LinkedIn allow people to announce their professional transitions without direct solicitation. It is difficult for a former employer to charge a person with solicitation when they can defend themselves by saying that they were just updating their profile.
- Digital communication is geographically limitless, and that can make things legally complicated. Different states have diverse laws regarding employment contracts, and that makes enforcing them much more difficult.
- Because information spreads so quickly online, a breach of a non-solicitation agreement can happen faster than an employer can act. Finding out that a solicitation has happened after the fact makes enforcement more difficult.
- Courts have been stymied by how to apply contractual language written for traditional communications to digital communications.
- Digital communications are extremely difficult to monitor without raising concerns about employee and former employee privacy
- Solicitation of clients or employees can easily evade detection in the digital age. From private messaging and encrypted communications to anonymized accounts, it is increasingly difficult to prove when communication in violations of employment contracts takes place.
The best way to enforce non-solicitation agreements in the face of these technological changes is to revise existing contract language to reflect the new landscape. This means being clear in what type of actions will be interpreted as solicitation, including specifying the actions and communication methods that are covered in the contract. Detailing geographic and time limits will address concerns about varying jurisdictions’ laws, and establishing digital monitoring policies upfront will remove concerns about privacy rights. Employers can also include information about the implications of breaching non-solicitation agreements as part of their training program, spelling out what constitutes a potential breach.
To make sure that your organization is well protected, contact us today for a thorough review of your current employment contract language, and help crafting new non-solicitation agreements that reflect today’s technology.
