Restrictive Covenant Guide
Non-Solicitation Agreements: Employee vs. Contractor, What They Cover
A non-solicitation agreement restricts a former employee or contractor from poaching your clients, customers, or other employees after they leave. It is generally more enforceable than a non-compete because it does not prevent the person from working in their profession — it only restricts targeted solicitation. This guide explains what non-solicitation clauses cover, how they differ from non-competes, and how to draft them.
Last updated: July 11, 2026 · Reading time: 7 min read
non-solicitationnon-competerestrictive covenantemploymentcontractor
Non-Solicitation vs. Non-Compete
A non-compete prevents a former employee from working in the same industry or for a competitor anywhere in a defined geography. A non-solicitation only prevents them from actively targeting your specific clients, customers, or employees. Non-solicitation agreements are easier to enforce because they do not restrict the person's ability to earn a living — they only restrict targeted solicitation. They are also less affected by recent state-level crackdowns on non-competes (California, Minnesota, North Dakota, Oklahoma).
Where non-competes are restricted: California, North Dakota, and Oklahoma effectively ban non-competes for most workers. Minnesota, New York, and Washington have enacted major restrictions in 2023–2024. Several other states (Massachusetts, Colorado, Illinois) have pending or recent legislation limiting non-competes. Non-solicitation clauses are generally unaffected by these changes.
What a Non-Solicitation Agreement Typically Covers
- Customer non-solicitation — restricts soliciting business from your existing customers with whom the person had material contact in the last 12–24 months
- Employee non-solicitation — restricts recruiting or hiring your current employees for a defined period (commonly 12–24 months)
- Vendor and supplier non-solicitation — restricts diverting business from your key suppliers or vendors
- Scope of activity — may restrict direct contact (calls, emails) or broader activities (advertising to the restricted group)
- Duration — typically 12 to 24 months from the end of employment or contract
- Geographic scope — may be statewide, regional, or limited to specific markets where the employee operated
Drafting an Enforceable Non-Solicitation Clause
- Identify the legitimate business interest Courts enforce non-solicitation clauses only when the employer has a protectable interest: trade secrets, confidential customer lists, or specialized training. Document the interest in the agreement.
- Limit duration to what is reasonable 12 months is generally enforceable; 24 months is at the edge; longer durations are frequently struck down as unreasonable.
- Limit the scope of restricted customers "Any customer of the company" is generally overbroad. Limit it to customers with whom the person had material contact in the last 12–24 months.
- Include a separate consideration clause In most states, the non-solicitation must be supported by consideration — a signing bonus, severance, equity grant, or continued employment. Separate consideration strengthens enforceability.
- Avoid penalizing passive advertising General advertising (LinkedIn profiles, public job postings, industry networking) is typically not "solicitation." Drafting that targets only active solicitation is more enforceable.
Frequently Asked Questions
Is a non-solicitation agreement enforceable without a non-compete?
Yes. Non-solicitation agreements are independent restrictive covenants and can stand alone. They are easier to enforce than non-competes because they do not prevent the worker from earning a living in their profession. Most courts will enforce a reasonably scoped non-solicitation even when they would strike down a non-compete.
Do non-solicitation clauses apply to independent contractors?
Yes, and they are often easier to enforce against contractors because the contractor relationship is defined by a written agreement. A well-drafted contractor agreement with a clear non-solicitation clause is enforceable in most states, particularly when supported by separate consideration (a payment, an exclusivity premium, or assignment of significant IP).
What happens if a former employee violates a non-solicitation clause?
The employer can seek an injunction to stop the violation and damages for any harm caused. Injunctions are commonly granted because the harm (loss of customer relationships) is difficult to quantify after the fact. Courts may also award the employer's attorneys' fees if the agreement includes a fee-shifting provision.
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