Non-Compete Agreement and Non-Solicitation Provision

California employment lawyers helping employees negotiate or challenge non-compete and non-solicitation agreements

While common in most other states, non-compete and non-solicitation agreements are generally illegal in California. Out-of-state employers, and even California employers, sometimes insist that their California employees sign an employment contract that contains a non-compete or non-solicitation provision. They may even refuse to hire a new employee, or fire an existing employee, when the employee refuses to sign the agreement. The employment attorneys at Minnis & Smallets help California employees understand their rights if they are asked to sign (or have signed) a non-compete agreement or a contract with a non-solicitation provision.

What is a non-compete agreement?

In many states, employers may condition employment upon the employee’s willingness to agree that, after employment ends, the employee will not compete against the employer. “Compete” is usually defined as doing the same kind of work that the employee did for the employer.

What is a non-solicitation agreement?

A non-solicitation provision in an employment contract seeks to prohibit an employee from taking on the former employer’s clients or customers after the employee is no longer employed by that business. For example, a non-solicitation agreement would seek to prohibit a salesperson from soliciting the employer’s customers or clients. In states that permit them, a non-solicitation agreement is often combined with a non-compete agreement.

Are non-compete and non-solicitation agreements always illegal in California?

California law generally prohibits employers from requiring their employees to enter into non-compete agreements. The same rule generally holds for non-solicitation agreements that seek to prevent the employee from soliciting the employer’s customers.

California is one of only a few states in which non-compete agreements are considered to be against public policy. California Business and Professions Code section 16600 provides that “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” The exceptions to this rule are very limited, and they deal mainly with the sale of a business or dissolution of a partnership.

However, California makes it unlawful for employees to misappropriate trade secrets from a former employer or to use confidential information or trade secrets to solicit customers of the former employer. In other words, a California business cannot prohibit a former employee from working for a competitor, but it can legally require the former employee to maintain confidentiality of the employer’s trade secrets and confidential information, even while working for another company.

Is an out-of-state employer bound by California law?

Employees should be aware that some employers headquartered outside of California have tried to enforce non-compete and non-solicitation agreements against California-based employees through contract terms that require disputes to be decided in a state other than California, using that state’s laws. Those contract provisions are referred to as choice of law and forum selection clauses.

Some courts have upheld choice of law clauses agreements involving employees who work in California. Those courts have applied out-of-state law to enforce the non-compete agreement. Any employee who is asked to sign a non-compete agreement should obtain legal advice, particularly if the employee’s employer is not based in California.

Can employers retaliate against employees who refuse to sign non-compete agreements?

It is generally unlawful for an employer to fire an employee or to refuse to hire an employee for refusing to sign an unenforceable non-compete agreement. The employee should seek legal advice to determine whether the employee has a claim for wrongful termination in violation of public policy if the employment relationship was terminated after the employee refused to sign what he or she believed to be an invalid non-compete agreement.

Have you been asked to sign a contract with non-compete or non-solicitation provisions?

While many employers are aware that non-compete provisions are unenforceable in California, there are still employers who require their employees to sign them. You should understand your legal rights before you sign a contract with non-compete or non-solicitation provisions. While California law generally prohibits such agreements, non-compete and non-solicitation agreements can raise complicated legal questions, particularly if the employer’s home office or the employee’s residence is in a state other than California.

The employment lawyers at Minnis & Smallets have advised many executives, salespersons, professionals, and employees regarding non-compete and non-solicitation agreements. Before you sign or refuse to sign a contract containing a non-competition or non-solicitation provision, please call us at 1-415-551-0885 or submit our online contact form.