Non-Solicitation Agreement

A non-solicitation agreement is a contractual provision restricting former employees from soliciting the former employer's customers or employees for a defined period. The covenant typically runs 12-24 months post-termination, covering customer non-solicitation (no outreach to former-employer customers) and employee non-solicitation (no recruiting current employees). Sometimes standalone, often part of an employment agreement or restrictive covenants, it serves as a more-enforceable alternative to non-competes because it doesn't prevent the former employee from working at a competitor but does protect the employer's customer relationships and team stability. It is generally more enforceable than non-competes across jurisdictions and a common element of restrictive covenant frameworks.

The two types:

Customer non-solicitation:

• Former employee can't reach out to former employer's customers to solicit business.
• Often includes prospects in the pipeline at time of departure.
• Duration: typically 12-24 months.
• Protects customer relationships and revenue.

Employee non-solicitation:

• Former employee can't recruit current employees of former employer.
• Sometimes covers passive recruitment (recruiter outreach) and active poaching.
• Duration: typically 12-24 months.
• Protects team stability and prevents mass employee defections to competitors.

Why more enforceable than non-competes:

Doesn't prevent employment: former employee can work anywhere; just can't solicit specific protected parties.

Narrower scope: targets specific behaviors rather than entire employment.

Easier to define: specific lists of protected customers and employees are concrete.

Courts more willing to enforce: balance between employer protection and employee mobility.

Even in California: customer non-solicitation has limited enforceability (Business and Professions Code 16600), but employee non-solicitation can be enforced in some narrow circumstances.

Common scope provisions:

Defined customer list: specific named customers (sometimes attached as exhibit).

Definition of "customer": current customers, customers in last X months, prospects.

Acts considered solicitation: outreach to encourage customer to switch; provision of competitive services; sometimes accepting business even if not actively solicited.

Carve-outs: customers who reach out without solicitation; pre-existing relationships; general public marketing.

Common scope failures:

Too broad: "all customers ever" gets unenforceable.

Vague definitions: unclear what counts as solicitation.

No carve-outs: customers who proactively reach out shouldn't be off-limits.

Ryan's Take

Non-competes are getting harder to enforce. Non-solicits are the protection you can actually count on, and usually the one you really need. Put both customer and employee non-solicitation in your employment agreements, with a specific customer list and a clear definition of what counts as soliciting. Leave reasonable carve-outs for inbound customer interest. You get real protection without trying to block where people can work.

What founders get wrong: Relying on non-competes for protection when non-solicitation is both more enforceable and often sufficient. The right discipline: non-solicitation as primary protection; non-compete only where enforceable.

Related: [Non-Compete Agreement] · [Restrictive Covenants] · [Employment Agreement] · [NDA]

FAQ

What is a non-solicitation agreement? A contractual provision restricting former employees from soliciting the former employer's customers (customer non-solicitation) or employees (employee non-solicitation) for a defined period (typically 12-24 months post-termination). More enforceable than non-competes.

How is non-solicitation different from non-compete? Non-solicitation: can't solicit specific protected parties (customers, employees); can still work anywhere. Non-compete: can't work for competitors at all. Non-solicit is narrower, more enforceable, less aggressive on employee mobility.

Are non-solicitation agreements enforceable in California? Customer non-solicitation has limited enforceability in California (Business and Professions Code Section 16600). Employee non-solicitation can be enforced in some narrow circumstances. Generally more enforceable than non-competes (which are largely unenforceable) but with constraints. Always seek California-specific counsel.