Are Non-Solicitation Agreements Enforceable in Arizona?
In Arizona, non-solicitation agreements may be enforceable if they are “reasonable.” This means employers may be able to prohibit an employee from soliciting other employees and customers/clients for a period of time. It is never easy to determine what an Arizona court will think is “reasonable.” New court decisions are issued on a semi-regular basis that impact what courts consider “reasonable.” Each case is decided based on its own specific facts, which makes it is difficult to predict what a court will do.
An employee may be able to argue that the agreement is unreasonable in terms of its scope or duration. Courts tend to be a bit more liberal in enforcing non-solicitation agreements than they are in enforcing non-compete agreements, which prohibit the employee from working in their chosen profession. In contrast, non-solicitation agreements only prevent the employee from soliciting employees and/or customers/clients.
One common argument that employees make is that they did not solicit any employee or customer – the customer or employee contacted them. Depending on how the non-solicitation agreement defines the term “solicit”, if at all, this may be a valid defense.
Another common defense that employees assert is that the employer did not suffer any damages because the customer(s) at issue would not have continued doing business with the employer anyway. Typically, this happens when a customer has a falling out with the employer for one reason or another. If the customer will swear under oath that they would have stopped working with that employer anyway due to some kind of falling out, then the employer may not be able to prove they suffered any damages.
If you have questions about a non-solicitation agreement, you should speak with an experienced employment attorney. The law is complex and grey. Don’t go at it alone.
About Author: Jeff Silence is a partner at Jaburg Wilk. He has helped to defend many employees who have been accused of violating their non-solicit agreements. He has also drafted many non-solicitation agreements for employers. He knows what to look out for and what it takes to avoid costly lawsuits.