Q: 10/3/18 - signed a "non-solicitation" that blocks specified services. Is this non-compete and should follow MNAA?
NY employee started with Mass employer on 10/1/18 (first day of Mass MNAA). On 10/3/18 employee signed a "Non-Solicitation Agreement" on third day of employment without any advanced notice of the agreement in the offer letter. For 18-mo employee cannot "render any management-related services to or solicit management-related business from, either individually or on behalf of an employer, any person or entity regardless of where located that was a client or customer of [employer] during employee's term of employment with [employer]."
Does restricting who employee can work for render this a Non Competition Agreement rather than NSA?
If a NCA, is it void because it does not expressly state that the employee has the right to consult with counsel prior to signing? There is no fair and reasonable consideration independent from the continuation of employment.
Employee breaking free to compete. Marine v Hurley?
Employee wants to take clients they brought in to company.
"Employee wants to take clients they brought into the company" is a red flag. If employee had been acquainted with or done business with a client before accepting employment with a company that might be ok? But the "ok" depends on what the employee did prior to accepting employment and what the employer invested or contributed to the employee once they accepted employment and began working.
Whether a clause is defined as non-solicitation or non-competition is essentially irrelevant. Some employers don't differentiate or simply insert clauses into an agreement throughout. What matters is the precise language of a clause and whether it protects or is designed to protect a legitimate business interest or investment of a company.
Pulling sentences or phrases from any of these agreements does little good because no lawyer understands what an employees duties are or which industry the employee serves without getting into the weeds of what they do and who they serve. I have seen employees leave multiple six figure salaries for almost a seven figure salary during the pandemic without leaving their residences for their old as well as new positions. And employers do serve notices to cease and desist in some of these cases. And they will attempt to enjoin employees from working in their new jobs which means they may face unemployment.
The reality is that courts don't like to restrain employees from working but they will protect businesses who invest time and resources in sometimes very niche industries. Seek an employment lawyer and pay them to consult and review your entire agreement signed with or without counsel's advice. Courts like private contracts because the purpose is to avoid costly litigation. And litigation is rarely cheap.
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