Let me pose a "hypothetical" that may, in fact, be more common than employers want to admit. Assume an enforceable one-year noncompete agreement in which Employee promised not to compete with Employer in the state of Texas and would not solicit any Employer customers with whom he had contact during his employment. Let's also assume that, during his employment with Employer, Employee routinely posted to social media sites on which he had "connections," some of which just happened to be Employer's customers.
As all good things must end, Employee quits his job and moves out of state to work for a competing company. Because he is of the generation that discloses everything, Employee promptly posts these facts on his usual social media sites. Due to the instantaneous and viral dispersal of such posts, they are seen by personal friends, family and, of course, the Employer customers who are his cyberspace "friends."
Shortly after posting his good news, his screen lights up with messages from Employer customers who plan to contact him and send him their business at his new employer.
Has Employee legally violated his non solicitation agreement? No Texas appellate courts have specifically addressed this issue. Regardless, would a Texas trial court do anything about this, especially when there was arguably no intent to violate the agreement? Finally, what are the practical implications for the Employer, now that its customers have already indicated their preference for Employee? Given all of these unanswered questions, employers would be well advised to consider addressing this issue in their nonsolicitation agreements up front.
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