Hello, I was formerly employed with a company (I'll call company A) that manufactures Gas Detection systems, and now I am employed at a new company (I'll call company B) that manufactures Grain Monitoring equipment. Both companies are based in Calgary, Alberta. I'm a manager at my company (A) and I'm now hiring, and have a couple positions open, one of which is for a Test Systems Technologist. A former colleague from company A recently contacted me about one of the job postings at my company B. Note that I had a non-solicitation agreement before I left company A, which has a one-year clause on "poaching employees", of which about 6 months has elapsed. It turns out that he would be ideal for the Test Systems Tech job, and I would like to know if this situation is onerous or not. In truth, I have not "solicited" the former colleague, rather he contacted me. However, I'm concerned that company A wouldn't see it that way. Note that my company B is in a different industry (Agriculture) than company A (Oil & Gas / Telecom) and is not in any way a competitor. Also, the position this person would be filling is NOT, in my opinion, a key role that requires specialized inside knowledge that company A would need to protect (for example marketing or product design). It primarily requires skills and knowledge (test automation) that can be learned in many industries. Should I be concerned with the enforceability of the non-solicitation agreement in this case, and are there reasonable steps I should take to protect myself or mitigate the risk that Company A might exploit their non-solicitation clause? Thank you for considering my concerns. Steve
Province/Territory relating to question: Alberta
Searching online for articles related to non-solicitation and precedents in Alberta that relate to my situation.
At the same time why can't someone else from your company hire him and you stay out of the process and that way you not only did not solicit him but had nothing to do with the entire process?
Well, because I am the person that facilitated the job openings with HR and created the job descriptions, it's been assumed to be my responsibility to follow through with the hires. So far, I've facilitated an interview with the team here, and references and salary expectations with HR, so "staying out of the process" is not an option at this point. We would now like to make him an offer. It would certainly be possible to have the guy report to the other manager here (we are a very small company).
It would not be about reporting so that would not matter.
The main thing is to be sure that this potential employee will say he was not solicited if it comes to that.
That shouldn't be a problem--would it be sensible to present the potential employee with a letter that essentially confirms that he how he found out about the the opportunity and signs it or would this be unnecessary? I'm just wanting to be certain that I'm not exposed here.
I think that is a good idea.
And I think you should make sure your new employer knows about the issue.
I think my non-solicitation agreement states that I am to inform them if should consult with company AIt also occurred to me that since the potential employee doesn't care if Company A knows that he is searching for a job elsewhere,
Sorry I pressed reply too soon...
I think my non-solicitation agreement states that I am to inform them if I should ever be in a situation like this. It occurred to me that since the potential employee doesn't care if Company A knows that he is searching for a job elsewhere, I could make their acceptance of his resignation and working for company B a condition of offer. Does that make sense?
Yes it does. It protects you which is the main thing.
This is helpful Debra. In the event that company A doesn't agree to "release" of this clause, do you think it would still be safe to proceed? I have read that non-solicitation is hard to enforce, and haven't done that as far as I'm concerned.
I don't think they are hard to enforce but you haven't solicited.
So I think you possibly could be sued but most likely would win.
OK. I will draft a letter that states something like "(Employee) is aware there is a non-solicit agreement in place and voluntarily acknowledges that solicitation did not occur. In the event that an offer is accepted, (Company A) acknowledges that solicitation did not occur and releases (me), (company B) and its affiliates from any claims of solicitation regarding (Employee) in accepting employment with (company B)." There would be placeholders for a representative of Company A and the potential employee. I hope this makes sense. I will hit accept shortly as I think I have the answer I need, but I want to know if I can review my final draft with you perhaps next week? I'm happy to pay again, I just want to make sure I can get you since you are familiar with this now and have been helpful.
Sorry for the delay. I got stuck on the phone.
This sounds like a good idea.
I am not permitted to review documentation though as that would be practicing law which we cannot do over this site.
OK, I understand, in that case did I cover the bases that I should in this suggestion above?
Yes you did and very well/
I guess I missed my calling as a lawyer, hehe. (Just kidding!) Thanks.
It's never too late!!!!
When I was in law school a friend of mine and his mother both were there at the same time.
Haha, but too expensive for me (I need to work), unless there's an evening course :)
I don't think that would be possible sadly.
Shucks, oh well... at least I have this resource and people like you :) And good on you for being a human about this stuff. It's much appreciated, takes the tension out of a stressful situation.
Oh thanks very much. I am happy to hear that.
Have a great day Debra!