Non-Solicitation Agreement

A contract preventing a departing employee from poaching clients or colleagues for a period after leaving.

A non-solicitation agreement restricts a former employee from soliciting the company's clients, customers, or employees for a set period after departure. It's typically included alongside a non-compete in employment contracts, but it's narrower in scope and applies even in jurisdictions that broadly ban non-competes — because it doesn't restrict where you work, only who you may contact.

Non-solicitation clauses are generally considered more enforceable than non-competes precisely because they protect a targeted legitimate interest — existing client relationships and team stability — without broadly restricting a person's ability to earn a living. Courts that would never enforce a sweeping non-compete often have no trouble enforcing a well-drafted non-solicitation clause.

The operative concept is 'solicit.' Most agreements prohibit you from initiating contact with former clients for competitive purposes. What they typically don't prohibit — though the specifics depend entirely on the language — is a former client reaching out to you first and then choosing to do business with you. The line between accepting unsolicited business and soliciting it is blurry in practice and highly fact-specific.

Employee non-solicitation clauses (sometimes called anti-poaching provisions) are a distinct but related type. These prevent you from recruiting former colleagues to your new employer. Anti-poaching agreements between companies have faced significant legal scrutiny under antitrust law, but individual employee-level non-solicit provisions remain broadly enforceable.

Client Non-Solicitation vs. Employee Non-Solicitation

Most employment contracts that include non-solicitation provisions actually contain two separate clauses that are often lumped together under one label. Client non-solicitation prohibits you from reaching out to former clients, customers, or accounts to offer competing services. Employee non-solicitation (anti-poaching) prohibits you from recruiting or attempting to hire former colleagues to your new employer. These are distinct obligations with different practical implications. Client non-solicitation primarily affects sales, account management, and client-facing roles. Employee non-solicitation affects everyone — particularly managers and leaders who may naturally want to bring strong team members with them to a new role.

What Courts Consider When Enforcing Non-Solicitation

  • Scope of 'solicitation' — courts distinguish between active outreach (initiating contact to compete) and passive acceptance (receiving an inbound inquiry).
  • Duration — 12-24 months is typical; courts may narrow agreements that extend beyond what's necessary to protect the stated interest.
  • Definition of covered relationships — restrictions are most enforceable when limited to clients the employee had direct contact with, not the company's entire customer base.
  • Whether the restriction applies to inbound vs. outbound only — some agreements restrict any contact, others specifically restrict solicitation.
  • Geographic and industry scope — a non-solicitation covering 'any business anywhere' is overbroad; one limited to named accounts or a defined territory is more defensible.

Non-Solicitation vs. Non-Compete: Key Differences

  • Non-compete restricts where you can work — industry, employer, or role type. Non-solicitation restricts who you can contact — not where you work.
  • Non-solicitation is enforceable in California and other states that broadly ban non-competes.
  • Non-solicitation is generally easier for employers to enforce because it's narrower and protects a more targeted interest.
  • A non-compete prevents you from working for a competitor at all; a non-solicitation lets you work anywhere — you just can't take clients or colleagues with you.
  • Duration: non-solicitation agreements are typically 12-24 months; non-competes are often shorter to pass the reasonableness test.

How to Protect Yourself Before You Leave

If you're planning to leave a role and believe you may face a non-solicitation claim, there are practical steps to take before your last day. Understand exactly what the agreement prohibits — read it carefully and, if necessary, have a lawyer explain it. Document who contacted whom: if a client reaches out to you after you leave, keep records showing you didn't initiate contact. Don't download or copy client lists, contact databases, or any proprietary information before leaving — this creates separate legal risk and undermines any defense. Inform your new employer of the restriction so they can make informed decisions about how to approach the market and whether to defend you if a claim arises.

Example

A sales director leaves a company and joins a competitor. Six months later she emails three former clients to let them know she has moved firms. Her former employer sends a cease-and-desist citing a 12-month client non-solicitation clause in her employment agreement. She forwards it to her new employer's counsel, who confirms the clause is likely enforceable in her state. She stops outreach to former clients for the remaining six months of the restricted period to avoid litigation.