If you`re a California employer, you may be considering implementing a non-solicitation agreement in 2021. A non-solicitation agreement is a contract between an employer and employee that prohibits the employee from soliciting the employer`s clients or employees for a specified period of time after leaving the company. However, it`s important to understand the current state of non-solicitation agreements in California.

As of 2021, non-solicitation agreements are only enforceable in California under certain circumstances. Specifically, non-solicitation agreements are not enforceable against employees under California Business and Professions Code section 16600. This section states that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” In other words, non-solicitation agreements that restrict an employee`s ability to work in their chosen field are not enforceable in California.

However, non-solicitation agreements are still enforceable against former employees who have access to trade secrets or other confidential information. This is because non-solicitation agreements that protect a company`s trade secrets or confidential information fall under the category of “reasonable” restrictions on an employee`s ability to work. In addition, non-solicitation agreements may also be enforced if they are incidental to a valid contract or agreement, such as a severance agreement.

It`s worth noting that even if a non-solicitation agreement is enforceable, it must still be reasonable in scope and duration. Courts will typically look at factors such as the employee`s level of access to confidential information, the specific clients or employees covered by the agreement, and the length of time covered by the agreement.

Overall, it`s important for California employers to carefully consider the use of non-solicitation agreements in 2021. While enforceability is limited, these agreements can still be useful in protecting trade secrets and confidential information. As with any legal issue, it`s always advisable to consult with an experienced attorney before implementing a non-solicitation agreement or taking legal action to enforce one.