A California appellate court, in a recent published opinion, invalidated a nonsolicitation clause restricting employees of a health care staffing company from pirating their former colleagues. The opinion calls into question an employer’s ability to rely on nonsolicitation agreements.

California-based employers or those with employees in California, as a result, would be well-advised to consider whether provisions not to solicit employees should continue to be included in agreements. Furthermore, employers should carefully consider whether to attempt to enforce such agreements, as this opinion has made the outcome of such litigation less certain. In fact, the degree to which the court was willing to go to invalidate such a provision demonstrates that exceptions to non-compete agreements will continue to be narrowly construed to include only those contained in certain statutory exceptions. And, the court’s willingness to award the defendants’ their attorney fees should also be included in the calculus of whether to attempt to enforce such agreements.

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