It is sometimes tempting for a company to hire the employee of its subcontractor or service provider, whose skills it has been able to appreciate and who knows how the company works. The economy, in terms of training and recruitment, is undeniable.
For the subcontractors and service providers concerned, on the other hand, the loss of talent and the non-renewal of related commercial contracts cause undeniable harm.
This is why subcontractors and service providers, especially in the IT and Consulting sectors, frequently include non-solicitation clauses in their commercial contracts.
In practice, the non-solicitation clause prohibits the subcontractor's client from using employees hired for a limited period of time, even if they have left the company, under penalty of paying sometimes significant compensation.
Over time, these clauses have become almost systematic and rare are the companies that have not integrated them into their general conditions of sale.
But, beyond the deterrent effect, what is the practical effectiveness of these clauses?
1°/ The relative effect of the non-solicitation clause
The non-solicitation clause is provided for in the commercial contract between the subcontractor and his customer. It is therefore not provided for in the employment contract of employees whom the subcontractor is likely to assign to the mission.
Under these conditions and taking into account the principle of the relative effect of contracts, the non-solicitation clause is in principle enforceable by the subcontractor or the service provider only with respect to its customer.
The non-solicitation clause should in fact not be confused with the non-competition clause:
- La non-solicitation clause regulates the relationships between the subcontractor and its customers by limiting the risks of departure of employees at the shopper ;
- La non-competition clause regulates the relationship between the subcontractor and its employees by prohibiting the latter from engaging for the benefit of a competing company.
In other words, while it undeniably constitutes an effective means of protection against the poaching of employees by customers, The non-solicitation clause will not prevent the employee from leaving for a competing company in the absence of a non-competition clause provided for in the employment contract.
It may therefore be appropriate, depending on the extent of the protection from which the subcontractor wishes to benefit, to provide double protection by combining a non-solicitation clause in commercial contracts concluded with customers and a non-competition clause in employee employment contracts.
Indeed, it is only in the presence of these two clauses that a company will have real protection against the departure of its employees from its customers or its competitors.
2°/ The cost of protection
2.1°/ At first glance, the non-solicitation clause has the advantage of not being costly for the subcontractor since, inserted in commercial contracts, it is not accompanied by any consideration.
This advantage must be qualified because although the non-solicitation clause does not appear in the employment contract of the employees concerned, the Court of Cassation considers that insofar as the non-solicitation clause has, in practice, restrictive effects on the freedom to work of the employee concerned, the latter is likely to seek compensation (Cass. Soc. March 2, 2011, No. 09-40547).
Thus, if an employee of the subcontractor wishes to join a customer for whom he worked and the latter indicates to him that he is not in a position to recruit him given the existence of an unsolicitation clause, the employee may request the award of damages by arguing that this clause is causing him harm.
2.2°/ To the potential cost of the non-solicitation clause, the subcontractor must add the cost of the non-competition clause.
Indeed, unlike the non-solicitation clause, in order to be valid, The non-competition clause must be accompanied by a counterparty the amount of which depends on the scope of the clause and the specifics of the job occupied by the employee.
If no specific minimum amount is provided for by the texts applicable in this field, the courts often require that the consideration be at least equal to 20% of the employee's remuneration, throughout the duration of application of the clause (Cass. Soc. November 15, 2006, no. 04-46721; CA Paris, December 3, 2014, no. 11/10179).
If he considers it appropriate, the employer may however decide, at the end of the employment contract, to release the employee from his non-competition clause to avoid having to settle it.
Tristan HUBERT is in a position to assist you in drafting your commercial contracts and employment contracts to provide you with protection adapted to your needs.
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