Furthermore, the Tribunal „was not satisfied that the secondary decision in the AMN CASE, which invalidates the prohibition of debauchery under Loral because of the particular professional obligations of these employees, removes or limits primary participation.” Given these judgments, it is increasingly likely that virtually all non-solicitations from staff in California will be considered unenforceable, except for those covered by the legal exceptions. Even if such clauses do not directly limit a person`s ability to exercise his or her chosen profession, the restrictions imposed may nevertheless have a deterrent effect on employment opportunities, which provides additional support for public policy arguments against non-debauchery clauses. Employers have traditionally distinguished the provisions relating to the worker recruitment prohibition regime by relying on a 1985 California court of appeals called Loral v. Moyes. 174 Cal. App.3d 268 (1985). There, the court held that a prohibition on debauchery was not contrary to Article 16600 and could be enforced. The court found such a ban to be a reasonable and limited restriction, which had little impact on staff mobility and helped promote a stable workforce by preventing raids and poaching of staff. However, a recent Decision by the Delaware Chancery Court suggests that there may be a small void for non-California employers. While recognizing that Section 16600 clarifies that non-compete clauses are set aside under California law, the Tribunal found that Section 925 replaces the general rule that contractual clauses that attempt to avoid the problem by opting for the law of another state are not applicable in California. In particular, the Delaware court found that the law contains a subsection stating that the rule prohibiting non-California choice provisions does not apply when the employee is represented by an attorney when negotiating the terms of contract. The court decided that since the worker was represented in the case by his personal counsel during the negotiations on the employment contract, Delaware`s choice provision would be retained in the agreement.

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