Non-solicitation clause
A non-solicitation clause bars a party from poaching the other side’s employees or customers for a set time, usually during and after the contract.
What it means
A non-solicitation clause is a narrower cousin of the non-compete. Instead of stopping someone from competing, it stops them from actively reaching out to the other party’s employees, customers or both. It usually applies during the relationship and for a period afterward, often six months to two years.
Say a design agency brings in a freelance developer for a client project. An employee non-solicit would stop the developer from recruiting the agency’s staff, and a customer non-solicit would stop the developer from pitching the agency’s client directly. A key question is whether the clause bans only “soliciting” or also bars accepting work that comes unprompted, which is much broader.
Because they are narrower, non-solicits are enforced more often than non-competes, but the rules still vary by state, and some states, including California, look skeptically at restrictions on workers and customer relationships. Mutual employee non-solicits are common in business-to-business deals so neither side raids the other’s team. Customer non-solicits mainly favor the party with relationships to protect.
What to watch for
- Check whether the clause covers employees, customers, or both, and whether it is mutual.
- Look at whether it only bans active solicitation or also stops you from hiring or working with people who approach you on their own.
- See whether “customers” means only those you dealt with, or every customer the other party has.
- Check for an exception for general job ads or public postings not aimed at the other party’s staff.
- Note how long the restriction lasts after the contract ends and what remedy applies, such as a fixed fee per person hired.
Example clause
During the Term and for twelve months afterward, neither party will directly or indirectly solicit for employment any employee of the other party with whom it worked under this Agreement. General advertisements not targeted at the other party’s employees are not a violation.
Neither side can try to recruit the other’s staff it worked with until a year after the deal, though ordinary public job ads are fine.