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Drafting Enforceable Restrictions on Recruiting Employees

JDSupra (03/28/2012)

This article, originally published by the Illinois State Bar Association, considers the fact that employment and other contracts may restrict soliciting or hiring a firm’s employees for a period of time. Court decisions applying Illinois statutes recognize that having a stable work force is a legitimate business interest, but do not allow in most instances blanket restrictions on recruiting or hiring. However, a blanket restriction may be permitted given unusual circumstances such as a firm’s small size or the nature of the work force or industry.

Unless those circumstances are apparent, a recruitment restriction should be limited to competitive employment of those employees having confidential knowledge or with whom the restricted party holds a recruiting advantage. Recruiting advantages include relationships with the employees, knowledge of a firm’s confidential data, and knowledge of an employee’s competencies.

The restriction should be reasonably limited in terms of geography and timeframe. Furthermore, the restriction’s purview should be narrower for lower level employees than for senior management. For employees other than senior management, the restriction may need to be confined to subordinates, other employees with whom the restricted employee works, and senior manager.