What Is a Non-Solicitation Clause?
A non-solicitation clause is a provision in an employment agreement that prevents a departing employee from soliciting the company's clients, customers, or employees after they leave. Unlike a non-compete clause, which broadly restricts an employee's ability to work for competitors, a non-solicitation clause focuses specifically on protecting existing business relationships.
There are two main types of non-solicitation provisions. Customer non-solicitation prevents former employees from reaching out to clients they worked with during their employment. Employee non-solicitation prevents them from recruiting their former colleagues to join them at a new employer.
Why Non-Solicitation Clauses Are Important
When a key employee leaves, they often take with them deep knowledge of client relationships, business strategies, and team dynamics. Without a non-solicitation clause, there is nothing to stop that employee from systematically contacting every client they served or recruiting every team member they managed.
The impact can be severe. A departing salesperson who takes their entire book of business to a competitor can devastate revenue. A departing manager who recruits half a department can cripple operations. Non-solicitation clauses provide a legal mechanism to prevent these outcomes.
Customer Non-Solicitation
What It Covers
A customer non-solicitation clause typically prohibits the former employee from:
- Contacting customers they personally served or had a relationship with during their employment
- Encouraging or inducing customers to move their business to a competitor
- Accepting business from restricted customers even if the customer initiates contact (in some versions)
Defining "Customer"
The definition of "customer" is critical. Common approaches include:
- Customers the employee personally worked with — This is the narrowest and most enforceable definition
- Customers of the employee's department or business unit — Broader, but may be reasonable if the employee had visibility into those relationships
- All customers of the company — The broadest definition, and often difficult to enforce because it restricts the employee from contacting people they may never have interacted with
The most enforceable customer non-solicitation clauses are limited to customers the employee had direct contact with during the final 12 to 24 months of their employment. This approach is both reasonable in scope and easy to demonstrate in court.
Duration
Customer non-solicitation periods typically range from 12 to 24 months. The appropriate length depends on the nature of the business and how long it takes to establish new customer relationships. Industries with long sales cycles may justify longer restriction periods.
Employee Non-Solicitation
What It Covers
An employee non-solicitation clause prevents the departing employee from:
- Recruiting, soliciting, or hiring current employees of the company
- Encouraging employees to leave the company
- Facilitating the hiring of company employees by a new employer
Key Drafting Considerations
When drafting an employee non-solicitation provision, consider:
- Which employees are covered? Some clauses cover all employees, while others are limited to employees in the same department or those the departing employee supervised.
- Does it cover independent contractors? If you rely on key contractors, consider whether the clause should cover them as well.
- What constitutes "solicitation"? Define whether the restriction covers only active solicitation or also includes hiring employees who reach out on their own.
The "No-Hire" vs. "No-Solicit" Distinction
A no-solicit clause prevents the former employee from actively reaching out to recruit former colleagues. A no-hire clause goes further, prohibiting the former employee from hiring their former colleagues even if those colleagues apply on their own initiative.
No-hire clauses are more restrictive and face greater scrutiny from courts. Many jurisdictions view no-hire clauses as unreasonable because they penalize the employee for something they did not initiate. If you include a no-hire provision, be aware that it may face enforceability challenges.
Non-Solicitation vs. Non-Compete
While both are restrictive covenants, non-solicitation and non-compete clauses serve different purposes and have different enforceability profiles.
| Feature | Non-Solicitation | Non-Compete |
|---|---|---|
| Scope | Protects specific relationships | Restricts employment broadly |
| Enforceability | Generally more enforceable | Varies widely by state |
| California | Generally enforceable (with limits) | Almost entirely banned |
| Impact on employee | Can still work in the same industry | May not work for competitors at all |
| Proving violation | Must show active solicitation occurred | Must show competitive employment |
Non-solicitation clauses are enforceable in most states, including many states that restrict or ban non-competes. If you operate in a state that limits non-competes, a well-drafted non-solicitation clause may be your best option for protecting client relationships.
How to Draft an Enforceable Non-Solicitation Clause
Be Specific About Restricted Conduct
Define exactly what the employee cannot do. Vague language like "you shall not interfere with the Company's business relationships" is difficult to enforce. Instead, specify the prohibited actions: contacting, soliciting, encouraging, or inducing customers or employees to leave.
Limit the Scope
Restrict the clause to customers the employee actually worked with and employees they supervised or interacted with regularly. Overly broad clauses covering "all customers worldwide" or "all employees of the company and its affiliates" are more likely to be struck down.
Set a Reasonable Duration
12 to 24 months is the standard range. Longer periods may be appropriate for senior executives or employees with deep client relationships, but they will face more scrutiny.
Define Key Terms
Define "customer," "employee," "solicit," and other key terms clearly. Ambiguous definitions create loopholes and enforcement challenges.
Include a Look-Back Period
Rather than covering every customer the company has ever had, limit the restriction to customers the employee interacted with during a specified period — typically the last 12 to 24 months of employment.
Add Remedies
Specify the remedies available if the clause is violated. Common remedies include injunctive relief (a court order requiring the employee to stop the prohibited conduct), damages, and attorney's fees. Include language acknowledging that a violation would cause irreparable harm, which supports a request for an injunction.
Enforcement Challenges
Proving Solicitation
Proving that a former employee solicited a customer or fellow employee can be challenging. The solicitation may have occurred through a personal phone call, a private message, or an in-person meeting. Employers should maintain records of customer assignments and employee reporting relationships to support potential claims.
Social Media
LinkedIn connection requests, social media posts about a new job, or general announcements about a new company are typically not considered solicitation. However, direct messages to specific customers or employees encouraging them to make a change may cross the line.
Passive vs. Active Solicitation
Most enforceable non-solicitation clauses only restrict active solicitation — the former employee reaching out to the customer or employee. If a customer or employee independently decides to follow the departing employee, many courts will not consider that a violation of a non-solicitation clause (unless the clause also includes a no-hire or no-service provision).
Non-solicitation clauses strike a practical balance between protecting business interests and allowing employee mobility. When properly drafted, they provide meaningful protection without the enforceability challenges and employee pushback that often accompany non-compete clauses.