Most states deal only with prohibitions on the recruitment of customers, such as non-competition obligations – they are generally unenforceable unless they are narrowly designed.1 Other states go beyond the analysis of non-compete obligations and apply additional factors to determine whether a client is enforceable.2 Louisiana: In CDI Corp. v. Hough, 9 So.3d 2009 (La. Ct. App. 2009), the court assessed the opposability of an unsolicited employee between an engineering firm and its former vice-president of the company. The court recognized that La. R.S. 23:921 prohibits agreements that restrict the lawful exercise of trade, and has decided that a worker who is not solicited would not be from La.
R.S. 23:921 is governed because it does not prohibit the employee from practising, but simply limits those who can be hired to the worker`s new company. Since AMN Healthcare, the State of California and federal courts have shown a clear trend toward non-demanding employee provisions. Given the growing legal risks, employers working in California should conduct a thorough review of the text of their non-claim provisions for workers and the commercial reasons for those clauses. Paul Hastings` “Employee Mobility and Trade Secrets” practice group has a particular expertise in this area and is at your disposal.  See Clark`s Sales – Serves., Inc. vs. Smith, 4 N.E.3d 772, 782 (Ind. Ct. App. 2014) (no invitation to protect current customers, generally not former customers); Montel Aetnastak, Inc.
Miessen, 998 F. Supp. 2d 694, 717 (N.D. III. 2014) (Illinois courts are reluctant to recruit clients with whom former employees have never been in contact during their employment). When a non-profit organization is considering a non-formal provision, a non-profit organization should ask: If the judge says, “Why do you have to prohibit this former employee from recruiting your other collaborators,” what will you say? What is the specific interest of the organization that protects you? How did you limit the geographical and other restrictions to demonstrate their adequacy? It is wise for you and your lawyer to anticipate these issues wherever you work, especially if you are in one of those states that treats non-work issues as competition bans. Despite allegations that the former director violated the employee`s non-warning, the California Federal Court explicitly relied on Barker v. Insight Global, 2019 U.S. Dist.
LEXIS 6523 (N.D. Cal. Jan. 11, 2019) and AMN Healthcare v. Aya Healthcare, 28 Cal. App. 5th 923 (2018) to conclude that “the… it is not-declared by California law. Id. We often meet people who think that South Dakota is a “right to work” and that non-compete bans – sometimes called “alliances,” are not applicable under South Dakota law.