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55 Loy. L. A. L. Rev. 959 (2022)
Questioning the Employee Non-Solicitation Covenant

handle is hein.journals/lla55 and id is 959 raw text is: QUESTIONING THE EMPLOYEE NON-
Charles Tait Graves*
Based on an in-depth review of the dubious justifications courts
have offered when enforcing co-worker non-solicitation covenants, this
Article proposes that courts have too strongly favored employers against
their former employees in such disputes.
A co-worker non-solicitation covenant is a contract term that pro-
hibits a departing employee, for some period of time, from inviting his or
her former co-workers to join him or her at a new job or from encour-
aging a former co-worker to leave the company for any other reason.
Some are worded so broadly that one could breach the contract by ad-
vising a colleague to leave a hostile or harassing workplace, or to seek
higher pay. These covenants are ubiquitous in private sector employment
agreements, at all income levels and occupations. They are frequently
litigated, often alongside trade secret misappropriation claims. Courts
often find violations based on communications with former co-workers.
Despite that ubiquity, co-worker non-solicitation covenants re-
ceive scant attention. Court rulings see little in the way of sustained anal-
ysis. Notwithstanding the wave of academic and legislative attention paid
to employee non-competition covenants in recent years, the co-worker
non-solicitation clause remains an afterthought.
This should change. Courts and commentators have overlooked
how employers use co-worker non-solicitation covenants as a means to
avoid giving employees raises or promotions, and to avoid improving
workplace conditions. Employers' litigation arguments that such cove-
nants protect trade secrets, protect a company's goodwill with its cus-
tomers, or protect a supposedly stable workforce do not withstand
critical scrutiny. These covenants operate first and foremost as salary
suppression devices, not as an adjunct to trade secret law.
* Partner, Wilson Sonsini Goodrich & Rosati, San Francisco, and adjunct faculty, UC Has-
tings Law. I am grateful for comments on drafts of this Article by Camilla Hrdy, Riana Pfefferkorn,
Evan Penniman Starr, Elizabeth Tippett, and Deepa Varadarajan. This is the third in a three-part
series addressing under-analyzed areas of intellectual property and employee mobility law, which
impact creative employees when changing jobs. Departing employees can face a tangled body of
contract, tort, and statutory claims brought by former employers. Academics and practitioners have
provided little commentary about some such areas of law. This relative inattention is surprising
given the important policy concerns so often at stake in mobility disputes.


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