Non-Solicitation Clause: Know Your Client and Employee Restrictions
A non-solicitation clause prevents you from hiring employees or working with clients/customers of your former employer after leaving. It's often less restrictive than non-competes, but can still create problems—you might not be able to work with clients you built relationships with. This guide explains non-solicitation, enforceability, and negotiation.
What Is Non-Solicitation and How Does It Work?
Non-solicitation has two parts: (1) Employee non-solicitation: "You cannot hire employees of the company for 12 months after leaving," (2) Customer/client non-solicitation: "You cannot work with or solicit customers of the company for 12 months after leaving." Example: You work at software company, build relationships with 10 clients. You leave to start consulting. Non-solicitation prevents you from contacting those 10 clients for 12 months. Scope varies: (1) NARROW: "Customers you personally served," (2) BROAD: "Any customer of the company," (3) GEOGRAPHIC: "Clients within 50 miles," (4) TIME: 6 months to 3 years. Narrow non-solicitation (customers you worked with, 12 months, 50 miles) is more reasonable than broad (all customers, company-wide, nationwide, 3 years).
Enforceability of Non-Solicitation Clauses
Non-solicitation is generally MORE enforceable than non-competes because it's narrower: (1) It only prevents you from soliciting specific customers/employees (not from working in the industry), (2) Courts favor it because it protects legitimate business interests (relationships, investments in clients), (3) Narrow non-solicitation (customers you personally worked with, 12 months, reasonable geography) is usually enforceable in most states. BUT: (1) If "customer" definition is too broad (anyone who ever contacted company), courts might reduce, (2) If duration is too long (3+ years), court might reduce to reasonable period, (3) If clause is for employees but you're not senior staff, court might not enforce, (4) If you initiated the client relationship before employment, you might not be bound. Non-solicitation is enforceable in almost all states, unlike non-competes which are unenforceable in California.
How to Negotiate Non-Solicitation Clauses
Before signing: (1) Ask for narrow definition of "customers" (only those you personally served), (2) Ask for 6-month restriction instead of 12 months, (3) Ask for geographic limit (50 miles instead of nationwide), (4) Negotiate exception for customers who contact you (they solicit you = no restriction), (5) Negotiate exception for public outreach (you can advertise generally; if clients come to you, that's okay), (6) Limit to employees you directly managed (not all company employees), (7) Negotiate employee non-solicitation only if you're in management (senior roles), (8) Get definitions in writing: "Customer means entities who paid for services you directly provided." Red flags: Non-solicitation applying to all employees (not just management), non-solicitation of customers you didn't serve, or duration 2+ years.
Frequently Asked Questions
Is non-solicitation enforceable?
Yes, non-solicitation is MORE enforceable than non-competes in most states. Courts uphold it because it protects legitimate business interests (customer relationships). Narrow non-solicitation (12 months, customers you served, reasonable geography) is usually enforceable. Broad non-solicitation (all customers, nationwide, 3 years) might be reduced by court to reasonable terms.
Can I contact a client if they reach out to me?
Yes, in most cases. Non-solicitation means you can't actively solicit them, but if they contact you, you generally can work with them. This is called "passive" vs "active" solicitation. Passive (they contact you) = usually okay. Active (you contact them) = might violate non-solicitation. Ask company to clarify: "If clients contact me, can I work with them?" Get answer in writing.
What happens if I violate non-solicitation?
Company can sue for damages (client revenue lost, costs to replace client, etc.). But damages are hard to prove. Company might: (1) Threat letters (often just threats), (2) Lawsuits (expensive for them too), (3) Injunctions (court order to stop). If you're worried, get lawyer review. Many employment lawyers offer free 15-minute consultation.
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