A non-solicitation agreement doesn’t stop someone from working for a competitor. It stops them from taking your clients or your team with them when they go.
That distinction matters, because non-solicitation agreements get confused with non-competes constantly, and the two protect different things with very different enforceability standards.
What a Non-Solicitation Agreement Actually Covers
A non-solicitation agreement restricts a former employee, contractor, or business partner from actively pursuing two things after they leave: your clients and customers, or your remaining employees. A customer non-solicit prevents someone from reaching out to accounts they served or had access to. An employee non-solicit prevents them from recruiting former colleagues to follow them to a new employer.
Neither restriction stops the person from working in the same industry or even for a direct competitor. That’s the core difference from a non-compete, which restricts where someone can work at all, not just who they can contact once they’re there.
Non-Solicitation vs. Non-Compete
Courts generally scrutinize non-competes more heavily than non-solicitation agreements, because a non-compete restricts someone’s ability to earn a living in their field entirely, while a non-solicitation agreement leaves that door open and only limits specific contact. This makes non-solicits easier to enforce in most jurisdictions, and it’s why many companies rely on them even in states that have tightened or banned non-compete clauses outright.
The two provisions often appear in the same agreement, but they should be drafted and evaluated separately. A court that strikes down an overly broad non-compete won’t automatically strike the non-solicitation language sitting next to it, provided the two are written as distinct, severable provisions.
What Makes a Non-Solicitation Agreement Enforceable
Three factors determine whether a court upholds a non-solicitation agreement: a legitimate business interest, reasonable scope, and reasonable duration. A legitimate business interest usually means protecting real client relationships or confidential information, not simply preventing ordinary competition. Reasonable scope means the agreement covers clients or employees the person actually had contact with, not the entire company’s customer base regardless of connection. Reasonable duration typically falls in the one-to-two-year range, and provisions stretching well beyond that face a higher chance of being narrowed or struck by a court.
State law varies significantly on all three factors, and a handful of states, California being the clearest example, restrict or void non-solicitation agreements far more aggressively than most of the country. A provision drafted for a multi-state workforce needs to account for the most restrictive jurisdiction it will actually operate in, not just the one the company is headquartered in.
Drafting and Reviewing Non-Solicits Correctly
The most common drafting mistake is scope that’s broader than the legitimate interest it’s meant to protect. Restricting contact with “any customer of the company” rather than “customers the employee serviced or had access to in the prior twelve months” invites a court to view the provision as protecting market share rather than a real business relationship, which weakens its enforceability.
The second common mistake is treating a template clause as sufficient across every jurisdiction where the company has employees. A commercial contracts template built around one state’s standard doesn’t necessarily hold up once applied to a workforce spread across several states with different restrictive-covenant law.
What to Do When a Former Employee Breaches One
Enforcement typically starts with a cease-and-desist letter identifying the specific solicitation activity and the provision it violates. If that doesn’t resolve it, the next step is usually a request for injunctive relief to stop ongoing solicitation while the underlying dispute proceeds, since damages alone often can’t undo the loss of a client relationship or a departing team.
Reviewing high volumes of these agreements across a workforce, or auditing them after a jurisdiction’s law changes, is exactly the kind of surge work contract review support handles well. LawFlex deploys attorneys who can move through an existing agreement portfolio quickly when a compliance update or acquisition requires it.
FAQ
What is the difference between a non-solicitation and a non-compete agreement?
A non-compete restricts where someone can work after leaving a company. A non-solicitation agreement allows them to work anywhere, including for a competitor, but restricts them from soliciting former clients or employees.
Are non-solicitation agreements enforceable in California?
California law is significantly more restrictive toward non-solicitation agreements than most states, and certain forms, particularly customer non-solicits, are often unenforceable there. Review current California-specific requirements before relying on a standard template.
How long can a non-solicitation agreement last?
Most enforceable non-solicitation agreements run one to two years after employment ends. Longer durations face increased scrutiny and a higher chance of being narrowed by a court.
Can a non-solicitation agreement stop someone from working for a competitor?
No. That restriction belongs to a non-compete agreement. A non-solicitation agreement only restricts contact with specific clients or employees, not the choice of employer.
What does “no soliciting” mean in an employment agreement?
It means the departing employee or contractor cannot actively pursue specified clients, customers, or coworkers to move their business or employment elsewhere, though the exact scope depends on how the specific provision is drafted.
