Non-solicitation clauses are often bundled into employment contracts alongside non-competes — but they are treated very differently by US courts. Many states that refuse to enforce non-competes will still enforce reasonable non-solicitation provisions. Understanding the scope of any non-solicitation clause, and whether your state enforces them, is essential before you accept a job offer.
What is a Non-Solicitation Clause?
A non-solicitation clause restricts your ability to solicit a former employer's clients, customers, or employees after you leave. Customer non-solicitation provisions prevent you from actively approaching former clients to win their business. Employee non-solicitation (anti-poaching) provisions prevent you from recruiting former colleagues. Unlike non-competes, non-solicitation clauses do not prevent you from working in your industry — they only restrict specific targeted outreach to identified groups.
Red flags to watch for
Courts are more likely to enforce non-solicitation clauses that are limited to clients you had a personal relationship with. A blanket clause covering the entire client base regardless of contact is typically overbroad.
An all-employee anti-poaching clause may be challenged as a restraint of trade, particularly in California where such clauses raise serious enforceability questions.
Courts generally look more favourably on non-solicitation provisions of 12 months or less. Longer durations require stronger justification.
If a former client contacts you first, most courts do not consider responding to be solicitation. A clause that prohibits any contact — including responding to incoming approaches — is overbroad.
For large companies, an unlimited non-solicitation clause effectively functions as a non-compete. Courts scrutinise these provisions more carefully when the scope is functionally equivalent to a full competitive restriction.
Your legal rights
Non-solicitation clauses are generally enforceable in most US states subject to a reasonableness test covering duration, scope, and geographic extent. California is a significant exception: non-solicitation clauses (particularly employee non-solicitation clauses) have faced increasing scrutiny and some California courts have declined to enforce them. Several states have recently expanded non-compete restrictions to also cover non-solicitation terms in certain contexts. The FTC's 2024 non-compete rule, which was blocked by federal courts, would have affected non-solicitation provisions in some circumstances.
Questions to ask before you sign
- 1Does the non-solicitation apply to all company clients or only those I worked with directly?
- 2Does the anti-poaching clause cover all employees or only those on my team?
- 3How long does the restriction last?
- 4Does responding to an outreach initiated by a former client count as solicitation under this clause?
- 5Which state's law governs this clause and how does that state treat non-solicitation provisions?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.