Non-Solicitation Clause Explained
Understand what non-solicitation clauses mean for your career, how they differ from non-competes, and what you can negotiate before signing.
What Is a Non-Solicitation Clause?
A non-solicitation clause is a restriction in your employment contract that limits your ability to contact or do business with certain people after you leave the company. Unlike a non-compete clause, which prevents you from working for competitors entirely, a non-solicitation clause only restricts who you can reach out to - not where you can work.
These clauses exist to protect the employer's relationships with clients and its investment in its workforce. The core idea is that an employer does not want a departing employee to take its customers or team members along when they leave.
Non-solicitation clauses have become one of the most common restrictive covenants in employment contracts. They appear in everything from sales and consulting agreements to standard offer letters for software engineers. Because they are less restrictive than non-competes, many employees sign them without much thought - but they can still have a meaningful impact on your next career move.
Two Types of Non-Solicitation Clauses
Non-solicitation clauses come in two distinct varieties, and your contract may contain one or both:
Customer Non-Solicitation
Prevents you from contacting or doing business with the company's clients and customers after you leave. This is particularly common in sales, consulting, account management, and professional services roles where you build direct client relationships.
Key concern: How broadly is "customer" defined? Does it include every client of the company, or only those you personally worked with?
Employee Non-Solicitation
Prevents you from recruiting or hiring your former colleagues after you leave. This is designed to stop departing employees - especially managers and executives - from poaching the company's talent.
Key concern: Does the clause cover all employees at the company, or only those in your department or whom you directly supervised?
Important: Some contracts bundle both types together in a single clause, while others separate them. Read carefully to understand exactly what is restricted - the scope of each type can vary significantly.
Non-Solicitation vs. Non-Compete: Key Differences
These two restrictive covenants are often confused, but they restrict very different things. Understanding the distinction is critical when reviewing your contract.
| Factor | Non-Solicitation | Non-Compete |
|---|---|---|
| What it restricts | Who you can contact (clients, employees) | Where you can work (competitors, industries) |
| Can you join a competitor? | Yes, as long as you do not solicit restricted contacts | No, you are prohibited from working for competitors |
| Typical duration | 12-24 months | 6-24 months |
| Enforceability | Generally easier to enforce; upheld in more states | Heavily scrutinized; banned in several states |
| Impact on career | Moderate - limits specific relationships | Severe - can block entire career paths |
| Geographic scope | Usually not geographic (based on people, not places) | Typically tied to specific regions or territories |
Many employment contracts include both a non-solicitation clause and a non-compete clause. If your contract contains both, review each one separately, as they have different implications and different enforceability standards.
Common Non-Solicitation Language and What to Look For
Non-solicitation clauses vary widely in how they are written. Some are narrowly tailored and reasonable, while others are so broad they could restrict nearly all of your professional relationships. Here are real examples of contract language and what to watch for.
Example Contract Language
“Employee agrees that for a period of twenty-four (24) months following termination, Employee shall not directly or indirectly solicit, contact, or do business with any customer, client, prospective client, vendor, or business partner of the Company, regardless of whether Employee had any contact with such parties during employment.”
This clause is extremely broad: it covers every customer and even prospective clients and vendors, whether or not you ever interacted with them. The 24-month duration and 'indirectly' language further expand the restriction beyond what most courts consider reasonable.
Better alternative:
“For a period of twelve (12) months following termination, Employee shall not directly solicit customers or clients of the Company with whom Employee had material contact during the last twelve (12) months of employment.”
Example Contract Language
“During Employee's employment and for eighteen (18) months thereafter, Employee shall not, directly or indirectly, recruit, solicit, induce, or encourage any employee, contractor, or consultant of the Company to leave the Company's service, nor shall Employee hire or engage any such person.”
This employee non-solicitation clause covers all employees, contractors, and consultants - not just those you worked with. The 'indirectly' and 'encourage' language is dangerously vague: even mentioning to a former colleague that your new company is hiring could be deemed a violation.
Better alternative:
“For twelve (12) months following termination, Employee shall not directly recruit or solicit employees who reported to Employee or with whom Employee worked closely during the last twelve (12) months of employment.”
Example Contract Language
“Employee agrees not to solicit or accept business from any client of the Company for a period of twelve (12) months following termination of employment. This restriction applies to clients with whom Employee had direct contact or about whom Employee obtained confidential information during the last twenty-four (24) months of employment.”
While the duration and scope are more reasonable, the 'accept business from' language is noteworthy - it could mean you cannot serve a former client even if they come to you on their own. Additionally, the 'obtained confidential information about' provision could sweep in clients you never actually worked with.
Key phrases to watch for
- "Directly or indirectly" - massively expands the restriction beyond your personal actions
- "Any customer of the Company" - covers clients you never worked with
- "Prospective clients" - restricts leads and potential relationships, not just existing ones
- "Solicit or accept" - prevents you from even responding to inbound contact
- "Encourage to leave" - vague language that could cover casual conversations
- "Any employee, contractor, or consultant" - covers the entire workforce, not just your team
Enforceability: What Makes a Non-Solicitation Clause Hold Up in Court
Courts evaluate non-solicitation clauses based on several key factors. Even though these clauses are more readily enforced than non-competes, they are not automatically valid. Here are the four primary factors courts consider:
Reasonableness of Scope
The clause should be limited to people you actually had relationships with or knowledge about. A clause covering every client of a 10,000-person company is likely to be deemed unreasonable if you only worked with a handful.
Courts are more likely to enforce clauses limited to clients you personally serviced during your last 12-24 months of employment.
Duration
Courts generally view 12 months as reasonable for non-solicitation clauses. Periods of 18-24 months may be upheld for senior roles with deep client relationships. Anything beyond 24 months is likely to face strong judicial skepticism.
Some states, like Oregon, have statutory limits on restrictive covenant duration that apply to non-solicitation clauses.
Legitimate Business Interest
The employer must demonstrate a legitimate interest the clause protects, such as customer relationships, trade secrets, or confidential business information. A blanket non-solicitation for a role with no client contact or access to confidential information is harder to enforce.
The more access you had to sensitive client data, the more likely the clause will be upheld.
Consideration
Like non-competes, non-solicitation clauses require consideration - something of value given in exchange for the restriction. At hiring, the job itself is typically sufficient. But if you are asked to sign a non-solicitation after starting, the employer may need to provide additional consideration such as a raise, promotion, or bonus.
In some states (such as Illinois), continued employment alone is not sufficient consideration for a new restrictive covenant.
State-specific note: Even California, which famously bans non-compete agreements, has nuanced treatment of non-solicitation clauses. California courts have struck down some non-solicitation provisions under Business & Professions Code Section 16600, but the law continues to evolve. If you work in California, pay particular attention to how your non-solicitation clause is drafted.
How to Negotiate Non-Solicitation Terms
Non-solicitation clauses are often more negotiable than employers let on. Because these clauses are more likely to be enforced when they are reasonable, framing your requests as making the clause more enforceable can be a winning strategy. Here is what to negotiate and how to approach it.
What's Often Negotiable
- Narrow scope to clients you personally serviced
- Reduce duration from 24 to 12 months
- Limit employee non-solicitation to direct reports
- Add carve-out for inbound client contacts
- Exclude the clause if terminated without cause
- Define "solicitation" clearly to exclude passive activity
- Remove "indirectly" language or define it precisely
Negotiation Strategies
- Negotiate before accepting the offer, not after
- Frame changes as making the clause more enforceable
- Propose specific alternative language in writing
- Point out that narrower clauses are more likely upheld by courts
- If the clause is non-negotiable, ask for compensation in return
- Request a written list of covered clients for transparency
- Consult an employment attorney for high-value negotiations
A particularly effective negotiation approach is to ask for a "carve-out for inbound contacts." This means adding language that says if a former client reaches out to you of their own accord, accepting their business is not a violation. Many employers will agree to this because it is reasonable and already reflects how most courts interpret the distinction between solicitation and passive acceptance.
What Happens If You Violate a Non-Solicitation Clause
Violating an enforceable non-solicitation clause can have serious consequences. Employers tend to enforce non-solicitation clauses more aggressively than non-competes because they can more easily prove damages - if a client moved with you, the financial loss is quantifiable.
Injunction (Court Order)
The former employer may seek a temporary restraining order or preliminary injunction to immediately stop you from soliciting their clients or employees. Courts can issue these quickly, sometimes within days.
Monetary Damages
Your former employer can sue for lost revenue and profits from diverted clients. These damages can be substantial, especially in professional services, sales, and consulting where client relationships represent significant revenue streams.
Liquidated Damages
Some contracts include a pre-set penalty for violations, often calculated as a percentage of revenue from diverted clients or a fixed dollar amount per violation. Check your contract for any liquidated damages provisions.
Impact on Your New Employer
Your new employer may also be drawn into the dispute if they are accused of encouraging or benefiting from your violation. This can create tension with your new company and, in extreme cases, could jeopardize your new position.
Practical reality: Not every violation leads to a lawsuit. Employers weigh the cost of litigation against the value of the lost business. However, high-value client relationships or the departure of entire teams are scenarios where employers are most likely to take legal action.
How OfferScope Analyzes Non-Solicitation Clauses
Our AI-powered contract analysis identifies and evaluates non-solicitation clauses across every critical dimension:
- Identifies both customer and employee non-solicitation restrictions
- Evaluates the scope of covered relationships and contacts
- Assesses whether the duration is reasonable for your role and industry
- Flags overly broad language like "indirectly" or "any customer"
- Compares your clause against industry standards and benchmarks
- Highlights the distinction between active solicitation and passive acceptance
- Provides specific, actionable negotiation suggestions
- Considers your jurisdiction's enforceability standards
Related Resources
Non-Compete Clause Review
Understand non-compete agreements, enforceability by state, and how to negotiate better terms.
Employment Contract Red Flags
20 warning signs in employment contracts that could harm your career or finances.
How to Negotiate Your Employment Contract
Step-by-step guide to negotiating employment contract terms without risking the offer.
Leaving a Job with a Non-Compete
Your options when you want to leave but have restrictive covenants in your contract.
Frequently Asked Questions
What is a non-solicitation clause?
A non-solicitation clause is a contractual provision that restricts you from reaching out to your former employer's clients, customers, or employees after you leave. Unlike a non-compete, it does not prevent you from working for a competitor - it only limits who you can contact or recruit. Non-solicitation clauses come in two forms: customer non-solicitation (preventing you from pursuing the company's clients) and employee non-solicitation (preventing you from recruiting former colleagues).
Is a non-solicitation clause the same as a non-compete?
No. A non-compete restricts where you can work and prevents you from joining competitors or starting a competing business. A non-solicitation clause only restricts who you can contact - you remain free to work anywhere, including at a direct competitor. Non-solicitation clauses are generally considered less restrictive and are more likely to be enforced by courts.
Are non-solicitation clauses enforceable?
Non-solicitation clauses are enforceable in most states, including many that ban or heavily restrict non-competes (like California for trade-secret-related situations). However, enforceability depends on whether the clause is reasonable in scope, duration, and the definition of who is covered. Courts are more likely to uphold non-solicitation clauses than non-competes because they are less restrictive on the employee's ability to earn a living.
How long does a non-solicitation clause typically last?
Most non-solicitation clauses last between 12 and 24 months after employment ends. Courts generally find 12 months to be reasonable for most roles. Clauses exceeding 24 months face increased scrutiny and may be struck down as unreasonable, particularly for non-executive positions.
Can I work for a competitor if I have a non-solicitation clause?
Yes. A non-solicitation clause does not restrict where you work. It only restricts who you can reach out to. You are free to join a competitor as long as you do not actively solicit the former employer's customers or recruit its employees. However, if a former client contacts you on their own, that is generally not considered solicitation.
What happens if a former client contacts me first?
In most jurisdictions, if a former client or customer contacts you on their own initiative, this is not considered solicitation on your part. This is known as the "passive acceptance" or "incoming business" distinction. However, the exact rules depend on the specific contract language and your jurisdiction. Some contracts try to prohibit even accepting business from former clients - watch for this language carefully.
Can I negotiate a non-solicitation clause?
Absolutely. Common negotiation points include narrowing the definition of covered clients to only those you personally worked with, reducing the duration from 24 to 12 months, excluding employees you did not directly manage, adding a carve-out for inbound contacts, and specifying that the clause does not apply if you are terminated without cause.
What is the penalty for violating a non-solicitation clause?
If you violate an enforceable non-solicitation clause, your former employer can seek a court injunction to stop you from continuing the solicitation and may sue for monetary damages, including lost profits from diverted clients. Some contracts also include liquidated damages provisions that set a pre-determined penalty amount. In serious cases, courts may also award attorney's fees to the employer.
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