[Updated 11:00 a.m. EST, February 17, 2011: Revised to reflect that I’ve found a flavor of solicit that I can live with, and to include some new no-soliciting language.]
It’s common for confidentiality agreements to contain a no-soliciting provision. But when you come to think of it—and I just have—usually the solicit bit doesn’t work very well.
In this context, solicit means “to entice.” It’s a legalistic word, so that makes it unpromising for standard-English drafting. But more to the point, in no-soliciting provisions solicit is used awkwardly.
Here’s one way it’s used: “The Recipient shall not solicit or hire any of the Disclosing Party’s employees.” But that raises the question, solicit them for what? And usually when you just refer to someone’s soliciting, without saying what for, you’re talking about a prostitute, or someone going door to door seeking contributions for causes of varying levels of dubiousness. Presumably that’s not the sort of usage one wants to evoke.
That explains why more often you see “The Recipient shall not solicit to employ any of the Disclosing Party’s employees.” But normally you solicit someone for something, such as donations. And when you solicit to, you refer to an activity to be undertaken by the person being solicited—I solicited him to be our sponsor. That’s why solicit to employ is clumsy.
For solicit to be really clear, you’d have to say something like The Recipient shall not solicit employees of the Disclosing Party to accept employment with the Recipient. And that’s wordy.
But I think we’re stuck with solicit. For one thing, I haven’t found a suitable alternative. For example, I toyed with shall not offer employment to, but that conveys a different meaning.
Furthermore, the word solicit is so ingrained in deal circles that I’m reluctant to do away with it.
So here’s what I’ve come up with: solicit to be hired. It’s not great, but so far it’s the best I can do. And here it it, in the context of one version of the NDA document-assembly-template no-soliciting language that I spent much of yesterday putting together:
No [Hiring or] Soliciting. During the Disclosure Period and for one year thereafter, the Recipient shall not, on its own account or on behalf of any other Person, directly or indirectly [hire or] solicit to be hired, as an employee or independent contractor or in any other capacity, any individual (1) who is then an employee of the Disclosing Party or was an employee of the Disclosing Party at any time during the previous six months (unless the Disclosing Party terminated that individual’s employment) and (2) who during any part of the Disclosure Period was an employee of the Disclosing Party with whom the Recipient was, in a manner contemplated by this agreement, in contact regarding Confidential Information.
This language incorporates only some of the alternatives offered by the document-assembly version. Putting it together was a challenge—like putting together a puzzle with pieces that keep changing shape.
I bracketed the references to hire because no-hiring provisions pose more of an enforceability problem. But if you were to include hire, why bother with solicitation as well? Because presumably the Disclosing Party wants to be able to prevent the Recipient from sniffing around its employees.
By the way, I find nonsolicitation provision is clunky, so I’m now trying out no-soliciting provision. Verbs good, abstract nouns not so good. And no-soliciting provision goes nicely with no-hiring provision, which is a standard term in the literature.