For its May Employer Forum, we turned our attention to restrictive covenants: What are they, why do you need them, and how should you put them into place?
KEL lawyers Simon Kent and Ryan Macklon led the discussion, which included a review of the relevant legislation and certain key common law principles, and an introduction to “best practices” for creating non-competition, non-solicitation, and confidentiality clauses.
For those of you who weren’t able to make it, here are a few key takeaways:
- Define Everything. A non-competition and non-solicitation clause should include why your business or client list is unique, what the geographic limit is, and what the time limit is. When creating a confidentiality clause, the employer should ensure it defines with specificity what is confidential information for the company and type of business you engage in.
- Avoid being overly broad. Any non-competition, non-solicitation, or confidentiality clauses that contain overly broad terms will be considered a “restraint on trade”. For example, prohibiting an employee from working for another employer in any capacity restricts the employee’s economic interests, and goes beyond what is reasonable to protect the employer’s claimed proprietary interest.
- We’re here to help. Although non-competition, non-solicitation, and confidentiality clauses may seem to fall solely within the purview of your human resources department, it is always wise to have an experienced employment lawyer review them as well. We can help you with #1 and #2 above, and also ensure that the language you use in your policies is consistent with the legal definitions of these terms.
Our next Employer Forum, focusing on balancing work and family – something of crucial importance to employers during these strange and challenging times – will take place in June 2021. If you’d like to attend the June event or be added to our newsletter mailing list, please contact Fiona McFarlane at fionam@kentemploymentlaw.com.
Have questions about your workplace policies? Contact us!
