VIRGINIA NON-SOLICITATION AGREEMENT

It is Fall.
The leaves are red, orange yellow – crisp. The air is clean and the sky bright blue.
It is my favorite season.

So lets talk about something else that is my favorite. (Note – for those who liked the movie Elf, Smiling was his favorite). NON -SOLICITATION AGREEMENTS are my favorite.

There are typically two kinds:

a. A provision wherein employee agrees not to solicit other employees to leave the company, or go work at a competitor. EMPLOYEE NON-SOLICITATION.

b. A provision wherein employee agrees not to solicit customers, clients, etc., and offer same or similar services. Really, it is a NON-COMPETITION AGREEMENT named a NON-SOLICITATION AGREEMENT.

Lets focus on option (a) – EMPLOYEE NON-SOLICITATION.

I like these because I don’t think they matter much in the great scheme of business tort litigation, unless or until you the employee acts like a bone-head.

Example: Government contractor for DOD says to one of his colleagues, “I have always wanted to open a florist. It is my dream. If only I knew someone with experience in floral design.” Co-worker, bright-eyed, puts down his hot dog and says “I have a masters degree in floral design and my passion is orchids. I would Love to open a florist with you.” Then these lovely government contractors proceed to give their two weeks notice, rent space in Georgetown and open FEDERAL FLORISTS.

Could this be a breach of their non-solicitation agreement?

YES. CLEARLY.

Does the government contractor employer care? NO. NOT AT ALL. They aren’t harmed, won’t suffer damages and won’t lose a single client, project bid etc. because of your solicitations.

Will they sue these fine creative young men for breaching their agreements? NOPE. I REALLY DOUBT IT.

So why are these agreements my favorite? Because unless you are a bone – head (explanation to follow) they really don’t hold much water and will not likely lead to Court because employers will have a hard time proving damages, etc.

BUT if you are a Bone-Head, and do something like the following, your non-solicitation will matter:

Example: Three young governmental contractors sitting at a fake Irish bar in Arlington, after work one day, drinking foamy Guinness sitting on bar stools say “Hey, we bill our client DOD $150 an hour for our time. And we only see about $35 of that. Our benefits aren’t great. We do all the work and Jerry jerk who runs the office won’t likely give us the bonus we are due this winter. Lets go start our own competing company, bid the next job to DOD, keep all the money and only charge $148 an hour – ALL PROFIT.” glasses are raised and cheers uttered.

Could this be a breach of their non-solicitation agreement?

YES. CLEARLY.

Does the government contractor employer care? YUP. SURE DOES.

This conversation and the subsequent formation of FRAT GUYS CONSULTING, Inc.  likely leads to a 4 part lawsuit alleging (a) breach of fiduciary duty; breach of non-compete; breach of  non solicitation and violation of Virginia Trade Secret Act.

Will they sue these fine creative young men for breaching their agreements? Yup. Faster than these guys update their Linked In profiles.

So. Non-solicitations are my favorite still because if you are good – they won’t harm you. If you are a bone-head, they really can. So don’t be a bone head under Virginia law. Or, do, and call my office when you need help.

Lauren Ellerman
Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.