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Protect Your Customer List From Former Employees

Restrictive covenants not to compete are often part of employment contracts. The purpose of a restrictive covenant in employment contracts is to shield the employer from the possibility of losing customers to an employee who appropriates proprietary customer information for the employee's own benefit and also to shield the employer from the possibility of losing customers with whom the employer enjoys a mere permanent relationship.

The general rule is that every employer has a right not to have its customers appropriated by current or former employees. Employment contracts often contain covenants restricting the employee's right to pursue similar employment or solicit the former employer's customers or employees after employment termination.

Such restrictive covenants are usually found in employment contracts with sales representatives and service orientated professionals because employers have, or believe that they have, a great interest in guarding their clientele from competition. These restrictive covenants attempt to restrain former employees from cultivating the former employer's customers for another employer or for themselves. Many employers often contend that they have an interest in protecting the resources invested in training the employee and the developing solicitation techniques and sales methods.

In Illinois, the basic test is whether the restrictive covenant in an employment contract is reasonably necessary to protect the employer from improper or unfair competition, depending on the facts of each case. Illinois courts will prohibit employees who have signed a restrictive covenant from using confidential information, such as customer lists or customer information, or trade secrets, to gain a competitive edge over the former employer.

However, Illinois courts will also consider fairness to the former employee by requiring that the restrictive covenant be reasonable in duration and geographical scope and that the employer have a protectable interest in restrictive information or activity.

In addition to a reasonable duration and geographical area, any restrictive covenant in an employment contract must be related to a protectable business interest . . . in other words, is the covenant is necessary to protect the employer from unfair or improper competition.

In Illinois there are only two areas in which an employer has a protectable interest for which restrictive covenants will be enforced and protection given:

  1. near permanent customer relationships; and
  2. confidential or trade secrets.

The question of whether an employer's interest in its customer lists is protectable has become increasingly important in our service intensive economy. Generally, an employer has no proprietary interest in its customers. However, Illinois courts have recognized the need to protect the time, effort and resources invested by the employer in developing an established clientele and to protect the employer's clientele from solicitation by their former employee.

In order to be have a protectable interest in your customer list, the business must have a customer list that is a "near?permanent" relationship with the customer. The courts will look to seven factors to determine whether a protectable mere?permanent relationship exists with customers:

  • the number of years required to develop the clientele;
  • the amount of money invested to acquire the clientele;
  • the degree of difficulty in acquiring clients;
  • the extent of personal contact with clients by the employee;
  • the extent of the employer's knowledge of its clients;
  • the duration of the relationship; and
  • continuity of customer relationships in similar fields.

Generally, the courts will ask the question of whether the former employee could have had contact with the potential client "but for" the permanent relationship.

If you believe that your customer list should be protected from former employees, you should consult with attorneys experienced in this field. If you require additional information, contact George Bellas at 847.823.9030 Ext: 219 or george@bellas-wachowski.com.