What is a Non-Competition Clause in Alberta?
Non-Competition clauses try to prevent employees from going to work for a competitor, or starting their own business which may directly compete with the employer. These clauses can apply to the employee both during their employment, and for a specified time following the end of the employment relationship.
Non-competition clauses are rarely enforceable, as they often contain language which severely limits an employee’s ability to find new employment, and may seek to prevent it entirely.
Many non-compete clauses include language limiting an employee’s ability to find work within a certain geographical radius of the former employer, or preventing the employee from working in a particular industry. This can have a profound impact on the employee’s livelihood, especially on employees who work in more specialized industries or reside in smaller or rural centres.
The burden is on the employer to prove that the employee is in violation of the non-competition clause and that the clause is reasonable. An employee who is found to be in breach of an enforceable non-competition clause can risk a lawsuit from the previous employer and may be liable for any damages which arise from the breach. Therefore, it is important to understand the particular language of these clauses, whether they are enforceable, and their potential impacts on your ability to find new work, before making the decision to sign an employment contract.
What is a Non-Solicitation Clause in Alberta?
Although the idea behind this clause is similar to a non-competition clause, it is not the same thing, and often creates confusion for employees. A non-solicitation clause restricts an employee from actively pursuing clients, fellow employees or vendors, both during employment and for a specified time following the end of the employment relationship. For a non-solicitation clause to be enforceable, it must be reasonable, and it cannot be overly broad or ambiguous. Despite these requirements, a lot of confusion exists regarding what may count as “solicitation.”
In the age of social media, even a Facebook post or message could potentially be construed as a solicitation. Similar to the non-competition clause, an employee who is found to be in breach of an enforceable non-solicitation clause could be risking a potential lawsuit, including liability for any potential damages. Having certainty about your obligations under one of these clauses, as well as the enforceability of the clause itself, can help mitigate any future legal trouble for employees who have been terminated or have left their current employment.
Should I Hire an Employment Lawyer?
A Lawyer can review the enforceability of the clauses, and advise you on your potential liability should you be accused of breaching them. A Lawyer can also help you negotiate a less restrictive non-compete or non-solicit, so that your ability to find new employment in a similar field, within a reasonable time, is not significantly impeded.