Senate Bill 1031, signed by the Governor on April 23, 2013, confirms by statute that it is permissible for businesses or individuals to contract with an employee or independent contractor to prohibit the solicitation of other employees or independent contractors for employment with another person or business. The validity of these “anti-raiding” provisions was previously brought into question by the Supreme Court of Oklahoma's decision in Howard v. Nitro-Lift Technologies, Inc., decided in late 2011. In that case, the Court struck down an anti-raiding provision that restricted former employees from employing or recruiting any employee of the employer, causing concerns that all anti-raiding provisions might be void as an impermissible restraint on trade. This new law resolves the ambiguity and specifically authorizes employers to include anti-raiding clauses in contracts with employees or independent contractors. The new law does not explicitly provide any limits on an employer’s ability to prohibit the solicitation of its employees by former employees; however, overly-broad and oppressive clauses may create the possibility for litigation. For instance, a court is still likely to find invalid an anti-raiding clause that restricts a former employee from employing the business’ employees or independent contractors where the employee or independent contractor sought employment without solicitation. Therefore, it is advisable for employers to take a conservative approach when drafting anti-raiding clauses by narrowly tailoring the clause to comply with the language of the new statute. The new law goes into effect on November 1, 2013.

If you have any questions concerning anti-raiding provisions or need assistance drafting clauses for your contracts, please contact any of our labor and employment law attorneys.