Non-Solicitation Clause: Employee vs Customer Non-Solicits and What Holds Up

A non-solicitation clause stops a departing employee from poaching the company's customers, its employees, or both. It is the narrower cousin of the non-compete: instead of barring the person from competing at all, it bars them from raiding specific relationships. Because it is narrower, it survives in many states that void non-competes, which is exactly why in-house counsel reach for it first.

TL;DR

• A non-solicit comes in two flavors: customer non-solicitation (do not go after our clients) and employee non-solicitation (do not poach our staff). They are tested differently and should be negotiated separately.
• Non-solicits survive in more states than non-competes because they restrict less. But they are not automatically safe: a customer non-solicit can be voided where it functions as a back-door non-compete.
• Customer non-solicits hold up best when limited to customers the person actually dealt with, for a defined period, and aimed at solicitation rather than all contact.
• Employee non-solicits ("no-poach") are generally more enforceable, but watch the antitrust edge: agreements between companies not to hire each other's workers have drawn serious antitrust scrutiny.
• The biggest review trap is the "no-accept" clause: barring you from even accepting business from a former customer who comes to you unprompted often crosses into non-compete territory and gets struck.

What a non-solicitation clause actually does

The two types restrict different relationships and face different tests.

Customer non-solicitation. Bars the departing person from soliciting, servicing, or doing business with the company's customers for a set period. The defensible version is narrow: it covers only customers the person personally worked with or learned about, and it targets active solicitation, not passive receipt of business. The protectable interest is customer goodwill the company paid to build.

Employee non-solicitation (no-poach). Bars the departing person from recruiting or hiring the company's employees. This is usually the easiest restrictive covenant to enforce because it touches the departing person's own competitive freedom least. The interest is workforce stability and the investment in training.

A non-solicit does not stop the person from competing, advertising generally, or working for a rival. It only stops them from targeting the specific relationships the company is protecting. That narrowness is its strength.

Why it matters: the dollars at stake

Imagine an account manager who controls $2,000,000 in annual recurring revenue across 15 named accounts, then leaves for a competitor.

• With no customer non-solicit, the account manager calls all 15 accounts in week one. If half follow, the former employer loses roughly $1,000,000 a year, plus the cost of rebuilding those relationships.
• With a 12-month customer non-solicit limited to accounts the manager handled, the manager cannot pursue those 15, so the former employer keeps the renewals while it reassigns coverage.

That is a seven-figure swing tied to one clause. This is an illustrative example, but it shows why a tightly drafted customer non-solicit often protects more real revenue than a non-compete the courts would not enforce anyway.

Who wants what

The employee's best play is usually to keep the non-solicit but strip the "no-accept" overreach and limit customer scope to relationships they actually owned.

Market-standard language

A defensible dual non-solicit reads close to this:

NON-SOLICITATION.

(a) Customers. For a period of [twelve (12) months] after termination,
Employee will not directly or indirectly solicit, induce, or attempt to
divert the business of any customer of the Company with whom Employee
had material contact or about whom Employee obtained Confidential
Information during the last [twenty-four (24) months] of employment.

(b) Employees. For a period of [twelve (12) months] after termination,
Employee will not solicit, recruit, or induce any employee of the
Company with whom Employee worked to leave the Company. General
advertising not targeted at Company employees is not a breach.

The features that make this survive: customer scope limited to "material contact" accounts, conduct limited to soliciting and diverting (not accepting), and an express carve-out for general advertising in the employee non-solicit so a public job posting is not a breach.

The negotiation: standard, fallback, walk-away

The cleanest compromise: keep both non-solicits at twelve months, define "solicit" as initiated, targeted outreach, and cut any "no-accept" language. That gives the employer real protection while keeping the clause inside what courts enforce.

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Common carve-outs / variations

• General advertising carve-out. A public job posting or untargeted ad campaign should not count as soliciting employees. Standard and worth insisting on.
• Inbound-business carve-out. The person may serve a former customer who approaches them first, unprompted. This is what separates a non-solicit from a disguised non-compete.
• "Material contact" limiter. Customer scope tied to accounts the person actually dealt with, rather than the company's entire book.
• No-poach between companies. A separate animal: when two businesses agree not to hire each other's workers, that is a no-poach agreement between competitors, not an employment non-solicit, and it carries antitrust exposure.

A narrower fallback that survives in more states:

Nothing in this Section prevents Employee from (i) accepting business
from a former customer who initiates contact without solicitation, or
(ii) placing or responding to general advertisements not specifically
directed at Company personnel.

Jurisdiction and enforceability notes

Non-solicits are more enforceable than non-competes, but enforceability still turns on the state and the drafting. Hold these at the principle level:

• Many states enforce reasonable non-solicits even where they limit non-competes. Because a non-solicit restricts less, courts treat it more favorably. But the analysis is still state-specific.
• Some states scrutinize customer non-solicits as de facto non-competes. California is the strictest: a customer non-solicit that effectively bars competition can be void under the same policy that voids non-competes; see our California non-compete breakdown and the state-by-state guide.
• The protectable interest is goodwill or trade secrets. A customer non-solicit usually rests on customer goodwill; an employee non-solicit on workforce investment. Where the real concern is confidential customer data, see trade secrets enforceability by state.
• No-poach between competitors is an antitrust issue, not a contract-reasonableness one. Treat it separately and get antitrust review.

This is general information, not legal advice for a specific deal, and enforceability turns on the governing law and the facts. Confirm against the controlling state's current law before relying on a non-solicit.

Review checklist: red flags to catch

• "No-accept" language barring unsolicited business from former customers (reads as a non-compete).
• Customer scope covering the whole company book, not just the accounts the person handled.
• No general-advertising carve-out in the employee non-solicit.
• "Solicit" defined to include inbound contact the person did not initiate.
• Duration over 12-24 months with no justification.
• A mutual no-hire pact between companies that has not had antitrust review.
• Governing law in a state (like California) that may void a broad customer non-solicit.

How it interacts with other clauses

• Non-compete: the broader covenant; many employers use a non-solicit as the enforceable fallback when the non-compete is shaky.
• Confidentiality: protects the customer data and contacts the non-solicit is built around.
• Governing law: determines whether a customer non-solicit reads as enforceable or as a void non-compete.
• Survival: the non-solicit must expressly survive termination to run during the restricted period.
• Severability: governs whether an overbroad customer scope gets narrowed or struck.

FAQ

What is the difference between a non-compete and a non-solicitation clause? A non-compete bars the person from competing at all; a non-solicit only bars them from targeting specific customers or employees. Non-solicits restrict less, so they survive in more states, including some that void non-competes.

Are employee non-solicits enforceable? Generally yes, and they are usually the easiest restrictive covenant to enforce because they touch the departing person's competitive freedom least. Keep a carve-out for general, untargeted advertising so a public job posting is not a breach.

Can a customer non-solicit be unenforceable? Yes. A customer non-solicit that effectively bars the person from competing, for example by barring all contact or all business with a broad customer base, can be struck as a disguised non-compete. California is especially strict on this.

What does "material contact" mean in a non-solicit? It limits the protected customers to those the departing person actually dealt with or learned confidential information about, rather than the company's entire customer list. Tying scope to material contact is what keeps a customer non-solicit defensible.

Is a no-poach agreement legal? An employee non-solicit inside one company's employment agreement is routine. A no-poach pact between two separate companies, where each agrees not to hire the other's workers, has drawn antitrust scrutiny and can be treated as a per se violation. Get antitrust review before signing one.

How long should a non-solicit last? Twelve months is the common, defensible period. Eighteen to twenty-four months may be acceptable for senior roles with deep relationships, but longer terms invite a court to narrow or strike the clause.

Can I serve a former customer who comes to me? Often yes, if the non-solicit is properly drafted. A clause that only bars active solicitation, with a carve-out for unsolicited inbound business, lets you serve a former customer who approaches you first. A clause that also bars accepting unsolicited business is broader and more vulnerable.

Arshita Anand

Co-Founder & CEO · Attorney

Arshita leads product and strategy at Vaquill, building the legal AI suite that solo, small-firm, and in-house US lawyers use to run a matter end to end.