The non-solicitation clause

The non-solicitation clause: a form of the non-competition clause

A non-solicitation clause is an agreement between an employer and an employee that prohibits the employee from working for customers or business relations of the employer after the end of the employment contract. In case law and literature, a non-solicitation clause is often regarded as a form of a non-competition clause. A ‘classic’ non-competition clause limits the employee in his freedom to do particular kinds of work after the end of the employment contract. A non-solicitation clause prohibits the employee from carrying out work for the customers or business relations of his former employer for a certain period of time.

Contents of the non-solicitation clause

Non-solicitation clauses come in different forms. They can involve a prohibition on working for all customers or business relations of the employer, but they can also relate to only a few customers. A non-solicitation clause may also include a prohibition on maintaining contacts with the employer’s customers and business relations of the employer after the end of the employment contract. For example, the Court in preliminary relief proceedings in Arnhem ruled that an employee who accepted a customer of his former employer as a connection on LinkedIn after the end of his employment had violated his non-solicitation clause. It may therefore be advisable to consult an employment lawyer or another employment law expert beforehand.

Non-solicitation clause with a limited duration

A non-solicitation clause often is valid for a fixed period (e.g. one or two years), and sometimes it is agreed that the employee has to pay a penalty if he violates the non-solicitation clause. The court can reduce both the period for which the non-solicitation clause is valid and the amount of the penalty. Your employment lawyer at AMS Advocaten can provide you with legal advice on this matter.

Strict requirements for temporary employment contracts

As from 1 January 2015, a distinction is made between fixed-term and permanent employment contracts for the application of a non-competition clause (and therefore also the non-solicitation clause, as a form of the non-competition clause). The new law applies to employment contracts that are entered into from 1 January 2015 onwards.

A non-competition clause and/or non-solicitation clause can only be included in a fixed-term employment contract if it is apparent from the employer’s written substantiation included in this clause that the clause is necessary because of compelling business or service interests.

Employer must justify the non-solicitation clause

If an employer wants to include any such clause in a temporary employment contract, he will have to justify the interests involved in writing and also explain why these interests require the inclusion of the non-competition clause and/or non-solicitation clause. It must concern specific temporary activities or specific positions that result in the employer’s advantage in including the non-competition clause outweighing the disadvantages for the employee. If no justification has been included, the clause does not apply. If the interest involved in including the clause is insufficient, the employee can try to have the court annul the clause in full or in part.

Imputable acts of the employer: lapse of non-solicitation clause

As from 1 January 2015, the non-competition clause and/or non-solicitation clause in the employment contract lapses if the employment contract is terminated or discontinued as a result of serious imputable acts or omissions on the part of the employer. Examples of situation in which termination or discontinuation of the employment contract is the result of serious imputable acts or omissions on the part of the employer are: discrimination by the employer and the situation in which an employee has become incapacitated for work (and finally is dismissed) as a result of the employer’s imputable failure to provide sufficient care for the employment conditions.

Social media provision

The use of social media has become part and parcel of everyday life. However, the use of social media regularly results in court cases. It is therefore advisable for employers to include a good social media clause in the employment contract. This may cover everything that has to do with the use of, for example, Twitter, Facebook and LinkedIn.

Lawyer for non-solicitation clauses

The employment lawyer at AMS Advocaten in Amsterdam has extensive experience of handling disputes related to non-solicitation and non-competition clauses and assists the employee as well as the employer in such matters.