California law prohibits noncompete agreements and some forms of nonsolicitation agreements.
Question: Can You Solicit Employees From a Former Employer?
I just started a new job in California, and one of the forms they asked me to sign was about soliciting employees after I leave. It basically says that, if I leave the company for any reason, I agree that I won't solicit any of my coworkers to join me. I don't know if I should sign it. I'm just starting this job, so I'm obviously not making plans for after I leave or get fired. On the other hand, it seems kind of weird that they would ask me to agree to this. What if a coworker wants to come work for me and I want to hire him or her? Can an employer really prohibit that?
Answer
In California, noncompete agreements are illegal as a matter of public policy. This means that an employer cannot keep an employee from going to work for a competitor or starting a competing business once the employment relationship ends. In fact, California feels so strongly about an employee's right to earn a living and move around freely that it's an illegal business practice to even ask California employees to sign a noncompete agreement, let alone try to enforce it.
Your employer hasn't exactly asked you to sign a noncompete agreement. However, it has asked you to sign a nonsolicitation agreement that limits your coworkers' job options in the future. Because this presents similar concerns regarding their ability to earn a living, California law has placed restrictions on these types of agreements.
Most states allow employers to ask employees to sign nonsolicitation agreements, in which they agree that they will not solicit—actively seek to woo—their coworkers for a given period of time after leaving the company. Some states will even allow a "no hire" agreement, in which the employee agrees not to hire former coworkers, even if the employee has taken no steps to actively seek out or encourage the coworkers to leave the company.
In California, the courts have generally held that "no hire" agreements are illegal. In other words, your employer cannot stop you from hiring coworkers who decide to leave of their own accord. On the other hand, a nonsolicitation agreement that merely prohibits you from actively reaching out to former coworkers about job opportunities is more likely to be enforced. However, even then, the agreement should be limited in time (for example, one or two years) and scope (for example, limited to coworkers with whom you worked).
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