When you have the opportunity to take a new job, the last thing you want is for your prior employer to sue you over a non-compete agreement. Fortunately, in Missouri, courts will only enforce a non-compete agreement against an employee if the employer can prove it has a protectable interest. Renal Treatment Centers v. Braxton, 945 S.W.2d 557, 563 (Mo.App.1997). And customer contacts constitute a protectable interest. Id. But what are customer contacts? If I have ever spoken with one of my employer’s customers, can they keep me from practicing my profession? The short answer is no, not all communications with a customer are “customer contacts,” and not everyone you speak with on behalf of your employer is a “customer”.
Customer contacts are essentially “the influence an employee acquires over his employer's customers through personal contact.” JTL Consulting, L.L.C. v. Shanahan, 190 S.W.3d 389, 397 (Mo.App. E.D. 2006); Schmersahl, Treloar & Co., P.C. v. McHugh, 28 S.W.3d 345, 348 (Mo.App.2000) (quoting Continental Research Corp. v. Scholz, 595 S.W.2d 396, 400 (Mo.App.1980)). The law in this area evolved in the sales industry, where certain employees can actually gain influence over a customer. In the sales industry, “customer contacts” are protected because “a customer’s goodwill toward a company is often attached to the employer’s individual sales representative, and the employer’s product or service becomes associated in the customer’s mind with that representative[,]” thus placing the employee “in a position to exert a special influence over the customer and entice that customer's business away from the employer.” Easy Returns Midwest, Inc. v. Schultz, 964 S.W.2d 450, 453 (Mo.App.1998). The goodwill that develops between the sales representative and the company’s customer is essential to the employer’s success and is the reason the employee is remunerated. AEE–EMF, Inc. v. Passmore, 906 S.W.2d 714, 720 (Mo.App.1995).
However, before an employer can claim a protectable interest in customer contacts, an employer must first have a stock of customers who regularly deal with the employer. Kessler–Heasley Artificial Limb v. Kenney, 90 S.W.3d 181, 186 (Mo.App.2002); Empire Gas Corp. v. Graham, 654 S.W.2d 329 (Mo.App.1983). In Empire Gas, the court adopted existing dictionary definitions of the word “customer,” as someone who repeatedly has business dealings with a particular tradesman or business. Id. at 330–31. See Kenney, 90 S.W.3d at 186; Silvers, Asher, Sher & McLaren v. Batchu, 16 S.W.3d 340, 345 (Mo.App.2000); Steamatic of Kansas City, Inc. v. Rhea, 763 S.W.2d 190, 192 (Mo.App.1988). “Unless the proponent of the restrictive covenant has a trade following, that is, a group of customers who regularly patronize the business of the particular employer, there can be no stock of customers and no protectable interest.” Id.
Unscrupulous employers claim that even incidental contact with the public are customer contacts, thus justifying the non-compete obligation. If your employer is threatening you with a non-compete agreement, a careful analysis of whether they have a stock of customers and whether you were in a position to gain special influence over those customers may be necessary to fend off a scorned employer. Working with an experienced attorney can help you plan your next move. The attorneys at Cosgrove Simpson are available to review your non-compete agreement and guide you on your way to the next phase of your career.