Employment Law

Non-Solicitation Agreement

Quick Definition

A non-solicitation agreement is a contract provision restricting a former employee, for a defined period after departure, from soliciting the company's clients, customers, or remaining employees — without restricting the former employee's ability to work for a competitor, which is the distinct function of a non-compete agreement.

What Is Non-Solicitation Agreement?

A non-solicitation agreement is frequently confused with a non-compete agreement, but the two serve genuinely different functions. A non-compete restricts where a former employee can work at all, typically barring employment with a direct competitor for a defined period and geographic area. A non-solicitation agreement, by contrast, doesn't restrict where someone works — it restricts specific conduct: actively soliciting the former employer's clients or poaching remaining employees to join them at a new company.

This distinction matters significantly given the shifting legal landscape around non-competes. Following the 2024 federal court decision striking down the FTC's proposed nationwide non-compete ban, and the continued expansion of state-level non-compete restrictions in states including California, Minnesota, North Dakota, and Oklahoma, many employers are turning to non-solicitation agreements as a more durable, more broadly enforceable alternative for protecting client relationships and team stability.

Non-solicitation agreements are generally subject to a similar 'reasonableness' review as non-competes — courts typically expect the restriction to be limited to clients or employees the departing individual actually had meaningful contact with, for a duration and scope that's proportionate to the employer's legitimate business interest, rather than a blanket restriction covering the entire client base or workforce regardless of actual relationship.

Employers building a post-non-compete protection strategy should pair a well-drafted non-solicitation agreement with strong confidentiality and trade secret protections, and with a disciplined employee offboarding process — access revocation, return of company property, and clear reminders of ongoing contractual obligations at separation — since these combined protections generally remain enforceable across a far broader range of states than a traditional non-compete.

Why Non-Solicitation Agreement Matters

As non-compete enforceability narrows across a growing number of states, non-solicitation agreements have become one of the most durable tools employers have left for protecting client relationships and team stability without restricting where a former employee can work.

Key Benefits

Remains enforceable in a broader range of states than a traditional non-compete, including several states that ban non-competes outright
Protects specific client relationships and team stability without restricting a former employee's ability to earn a living elsewhere
Generally survives judicial reasonableness review more easily than a broad non-compete when properly scoped
Provides a durable protection strategy independent of the ongoing legal uncertainty around non-compete enforceability
Can be paired with confidentiality and trade secret protections for comprehensive post-departure protection
Reduces the risk of key client or team member attrition immediately following a departure

Common Use Cases

Replacing or supplementing a non-compete agreement in states where non-competes are banned or narrowly enforceable

Protecting a sales team's client relationships when a senior salesperson departs for a competitor

Preventing a departing manager from actively recruiting their former direct reports to a new employer

Building a comprehensive post-departure protection strategy alongside confidentiality and offboarding processes

Frequently Asked Questions

What is a non-solicitation agreement?

A non-solicitation agreement is a contract provision restricting a former employee, for a defined period, from soliciting the company's clients, customers, or remaining employees — without restricting where the former employee can work, which is the distinct function of a non-compete agreement.

How is a non-solicitation agreement different from a non-compete agreement?

A non-compete restricts where a former employee can work at all, typically barring employment with a direct competitor. A non-solicitation agreement doesn't restrict employment choice — it restricts specific conduct, such as actively soliciting former clients or recruiting former coworkers to a new employer.

Are non-solicitation agreements enforceable in states that ban non-competes?

Generally yes, in most cases — states that have banned or restricted non-competes, such as California, Minnesota, North Dakota, and Oklahoma, typically still enforce properly scoped non-solicitation agreements, since they don't restrict where someone can work.

What makes a non-solicitation agreement reasonable and enforceable?

Courts generally expect the restriction to be limited to clients or employees the departing individual actually had meaningful contact with, for a duration and scope proportionate to the employer's legitimate business interest — not a blanket restriction covering an entire client base or workforce.