What you have here is them threatening
you over your alleged signing of a non-solicitation agreement that disallows hiring of their workers. They have not sued you as of yet. Now, I am going to assume
that such a document was signed that restricts you from hiring any employees/former employees of the company for a period of time.
In Pennsylvania, there is no law that specifically addresses restrictive covenants (which is what this is); rather, courts look to the reasonableness
of the restrictions in deciding whether a non-compete and non-solicit agreement is valid and enforceable.
So is the non-solicitation agreement enforceable? It is on a case by case basis
and some guidelines are:
1) Insulation Corporation of America v. Brobston
. "Salesman, discharged for poor sales performance, cannot reasonably be perceived to pose the same competitive threat to his employer’s business interests as the salesman whose performance is not questioned, but who voluntarily resigns to join another business in direct competition with the employer."
2) All-Pak, Inc. v. Johnston
. An employee who leaves ON THEIR OWN may come to work for the other company, provided that the company did not actively solicit them.
These are just guidelines. Again, the Court will see each matter on case by case basis, deciding on the facts at hand, the reason for the non-solicitation, the length of the contract
, and so on.
Someone in your situation has the following options:
1) Hire the employee anyhow, but risk them filing suit for breach of non-solicitation. If so, then one's affirmative defense
would be that the non-solicitation agreement was NOT REASONABLE. Hopefully, the Court will agree. OR, they may end up not filing suit at all.
2) Not hiring her.
I am afraid that these are your two choices here.
The very same applies with any clients who may be part of a non-compete (for client) agreement which may be part of or back to back with the non-solicitation (for worker) agreement.
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