My prior employment contract had a non-solicitation clause and upon departing the company we executed a "mutual release" of "from and against any and all Claims that the Company ever had, owned or held, or now has, owns or holds."
Would this prevent my new employer from hiring an employee of my old employer, or does the mutual release have the effect of voiding the non-solicit clause?
First, caution would mandate looking at the written mutual release. However, normally the two are independent unless the solicitation took place in the past by a party to the release. Your new employer was never part of the non-solicitation agreement.
Michael Raymond DaymudeLitigation LawyerSherman Oaks, CA ·
Mr. Doland has provided correct guidance. Your subsequent employer, unless a party to the non-solicitation agreement, is not bound by it nor would your new employer be able to boot-strap a defense based upon a mutual release you and your previous employer signed, unless it contained language which would include your subsequent employers.
Generally, mutual releases only release past conduct, not conduct that occurs in the future. The release would have to be reviewed, however, to give you a definitive answer on this issue.
Still, a new employer might be unwilling to risk a lawsuit by hiring you. Lawsuits are not only expensive to defend but they involve a lot of time that your new employer might be unwilling to invest just to hire you.
OTOH, there are many defenses to non-solicitation clauses. California employees are free to work for any employer they wish and, unless the employer solicited the employee in violation of an agreement the employer signed, the employee is free to work for the new employer, i.e., non-solicitation causes do not prevent employment—they only prevent solicitation.
If your new employer has not contractually agreed to refrain from hiring employees of your old company, it really does not matter about the mutual release you signed.
As to your specific question, without reviewing the documents it would be impossible to give you guidance it would be prudent to rely upon. Generally a general release releases a party of all obligations to the other. However, language can be deceiving and there may be other language in the agreement that says the non-solicitation of employees provision survives the release.
Good luck to you.
