Non-solicitation clauses are different than non-compete and confidentiality agreements. In short, non-solicitation agreements usually prohibit an agent/employee from contacting customers post employment/work. From experience, Courts are more willing to uphold the validity of non-solicitation clauses, but — like with non-compete and confidentiality provisions — they will only be honored if they are necessary to protect an employer’s interests and customer contacts.
An employer has a legitimate interest in customer contacts to the extent it seeks to protect against “the influence of an employee acquires over his employer’s customers through personal contact.” Schmersahl, Treloar & Co. v. McHugh, 28S.W.3d 345, 349 (Mo. Ct. App. 2000). A customer is one who repeatedly has business dealings with a particular tradesman or business. Payroll Advance, Inc. v. Yates, 270 S.W.3d 428, 434 n. 4 (Mo. Ct. App. 2008). Non-compete clauses must generally be tailored narrowly in both temporally and geographically . As such, it is common for a sales position to have a two (2) year post employment non-compete provision that applies within a twenty (20) mile radius. The validity of this clause will depend on the circumstances of a particular case.
Unlike with non-compete agreements, however, courts have enforced customer non-solicitation clauses without a geographic limitation when other limitations to the prohibited conduct exist or when the employee had significant contact with a substantial number of the employer’s customers. In one Missouri case, for instance, the court enforced a three (3) year customer non-solicitation clause with no geographic limitation for an employer located in eleven (11) states when the prohibition extended only to customers with whom the former employee dealt within the last twelve months. In another case, the court enforced a customer non-solicitation clause despite it having no geographic limitation, prohibiting contact with all of the employer’s customers, and involving a national company, when the employee utilized extensive customer lists and had substantial and significant contact with the employer’s customers throughout the nation.
Analyzing the nature of a non-solicitation, non-compete, or confidentiality agreements is a case-by-case inquiry. Contact with questions.