The usual gamut of post-employment covenants includes non-compete restrictions, non-solicitation of customer restrictions, confidentiality restrictions, and in many cases the anti-raid provision designed to keep a departing employee from hiring away a former employer’s employees and contractors.  The anti-raid is not always given a lot of thought, but it should be.  Why?  Because when there is an orchestrated departure, the odds are a departing employee will attempt to hire away the top lieutenants.   In most cases, the departing employee would rather use the same team as opposed to staring from scratch.

An anti-raid provision is a restraint of trade and subject to the Texas non-compete statute.  In the 2011 Marsh opinion that we have previously discussed, the Texas Supreme Court confronted this very issue.  The non-compete agreement in that case contained a clause stating that the departing employee could not “solicit any employee of [former employer] who reported to [departing employee] directly or indirectly to terminate his employment with [former employer] for the purpose of competing with [former employer].” In the section of the opinion where the court was laying out general rules for evaluating enforceability of non-competes, the Court reasoned: “Covenants that place limits on former employees’ professional mobility or restrict their solicitation of the former employers’ customers and employees are restraints on trade and are governed by the [Covenants Not to Compete Act].” See Marsh USA, Inc. v. Cook, 354 S.W.3d 764, 768 (Tex. 2011). Other courts have made similar rulings relying on Marsh.

So, like a non-compete agreement, generally the anti-raid must be ancillary to and otherwise enforceable agreement and reasonable in time and scope to satisfy the non-compete statute.  In most situations the anti-raid will accompany a non-compete agreement and non-solicit agreement because they are held to the same standard.  That said, a court may be more likely to enforce an anti-raid provision as opposed to the non-compete.  Why?  Because a court would rather keep a former employee from hiring folks away as opposed to putting them out of work.

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