So, what is the Take Away for Arizona employers? First, when working in an industry where employees have personal relationships with clients, they should consider entering into a no-pocher agreement with staff that is proportionate and sustainable. Second, when an employee resigns, employers should carefully monitor the employee`s communication with customers, as what the employee says and how they say it (i.e. by email, phone, face-to-face, etc.) are highly relevant to determining whether the no-pocher agreement has been violated and whether enforcement action should be taken. Third, employers who hire someone who has entered into a valid no-binge clause with a former employer should ensure that the client has not received inadmissible invitations. The same is true in Compass Bank v. Hartley, 430 F. Supp. 2d 973 (D. Ariz. 2006), an Arizona district court ruled that an employee`s action to send a letter to former customers containing two phone numbers, an email address, and his new address was an invitation. The court argued that it was an invitation “not only because it was a targeted mailing, but also because it contained contact information that led to [calling/writing]him/her”.
Restrictive agreements should be limited to a geographical area where the employer has a legitimate business interest. For example, an employer that provides goods and services only in the state of New Mexico does not have legitimate business interests in Arizona. Therefore, a non-compete clause that attempts to prevent a New Mexico employee from working for a competing company in Arizona would likely be unenforceable. Orca Communications proposes that Arizona employers carefully develop non-compete rules so that they are closely tailored to the legitimate interests to be protected. The decision confirms existing jurisprudence in Arizona, which prohibits rules of inappropriate permanent and geographic scope. However, the decision goes further by subjecting confidentiality rules (often sine die) to the same duration and geographical scope as those traditionally applied to non-competition clauses. . . .