Even before the pandemic, remote work was significantly changing workplace dynamics. One of the most troubling ways for businesses is the challenge that having employees out of physical sign can impact the enforcement of non-solicitation clauses. If your employment contracts restrict employees from soliciting their colleagues or your clients after leaving your organization — whether on their own behalf or for their new employer — the fact that they worked remotely may make those clauses more difficult to enforce.

One of the most common ways that remote work can impact the enforcement of a non-solicitation clause is the difference in laws between jurisdictions. Restrictive covenants that are common in one state or region may be restricted in others, and that dichotomy can create complexity for an employer. If you have an employee working in California, there is little you’ll be able to do to prevent them from exercising what the state views as their right to work freely. Other states’ rules may be less clear-cut, creating significant ambiguity.

There is also the fact that a virtual work environment makes monitoring violations of employment contracts extremely difficult. While solicitation may go on in traditional office settings, it is easier to detect in those circumstances than with an employee who is working from home; digital communication tools and social media platforms make it even harder to prevent communication that works against your organization’s interests, and so does the expanded professional network that may be available to the individual. The more extensive the connections an employee makes, the greater the risk of them using intermediaries you’re unfamiliar with to reach out to your clients or employees without you knowing it’s happening.

There are real concerns that today’s digital tools have rendered traditional non-solicitation clauses toothless. With many client relationships existing strictly on virtual platforms, terms and conditions may need to be updated to explicitly cover digital solicitation or interactions outside of what is beneficial to the employer. This, combined with new attitudes about whether restrictive covenants are fair, has forced many companies to reconsider their approach, choosing instead to use measures that encourage loyalty and retention rather than punishing those who leave.

If your employment contracts need to be updated in light of the new digital landscape, we can help. Contact us today to set up a time for us to meet.