Non-Solitation Term Added When Resign

I am resigning from a not-for-profit academic position A for another position in the similar not-for-profit orginzation B. On the resignation letter, I didn’t notice they quietly added one sentence “we are requesting no solicit of our empolyee for other empolyment” and mistakenly signed it. They didn’t offer anything for exchange, actually they didn’t even mention there was this term when they asked me to sign and finish the resignation process.

My questions:

1) Since my organiztion is pretty shaking, many people are leaving, organization B is a good target! some of them will go there (they hread from me that B is recruiting). They will be offered position by the organization, not by me, but they will probably working with or under me, is that a problem for me?

2) One of the employees here has already recived the offer BEFORE I signed my resignation letter today, will it make any difference?

A: This question raises a lot of issues. Nonsolicitation provisions are usually enforceable if they are reasonable. In your case, I see at least the following issues:

  • You could argue that they snuck the provision in. That’s usually an argument that is not very strong. Courts say you have the duty to read what you sign.
  • You could argue that their agreement only says they are “requesting” that you not solicit. You could argue that you are denying their request and soliciting anyway–without breaking any language in the agreement. How this would be seen by the court probably depends on the other language in the contract, and other facts leading up to the agreement.
  • You could argue that they didn’t give you anything in exchange for the nonsolicitation agreement. This is called “lack of consideration.” Depending on other factors this could be a strong argument for you.
  • You could argue that if someone approaches you because Academic Institution A is failing, that’s not solicitation by you. This seems like it would be a good argument, but again depends on the facts of the situation.

It is probably a good idea to speak with an Arizona employment lawyer and have him or her review the contract to give you definitive answers on the above issues. I have handled many such cases.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Mesa Employment Lawyer
Re-posted from AVVO Legal Questions & Answers.

Leave a Reply