Non-Solicitation Clauses: What They Prevent and How They Differ from Non-Competes

Most people have heard of non-compete clauses. Fewer people pay close attention to non-solicitation clauses — which often appear right next to the non-compete in an employment agreement and can be just as practically limiting in certain situations. Here's what non-solicitation clauses actually restrict, and why the distinction from non-compete matters.

Two Types of Non-Solicitation

Non-solicitation provisions restrict two distinct categories of activity after you leave a company:

Employee non-solicitation (also called a "no-poach" clause): You agree not to recruit, solicit, or encourage your former colleagues to leave the company and join you at your new employer (or your startup). The duration is typically 1-2 years post-employment.

Customer/client non-solicitation: You agree not to solicit the company's customers, clients, or prospective customers for a competing business. The scope is typically limited to customers you personally had contact with or about whom you had confidential information. Duration is again typically 1-2 years.

Both types may appear in the same employment agreement, sometimes as separate provisions and sometimes combined. They may also be separate from any non-compete clause — or there may be no non-compete at all while a non-solicitation is present.

Non-Solicitation vs Non-Compete: The Key Difference

The conceptual difference is important: a non-compete restricts where you can work and in what capacity. A non-solicitation restricts specific acts of solicitation — who you contact and for what purpose.

Under a standard non-compete, you can't work at a competitor at all, regardless of what you do there or who you contact. Under a non-solicitation (without a non-compete), you can go work at a direct competitor — you just can't use your new position to recruit your former colleagues or solicit your former customers.

This distinction matters practically. In California, where non-competes are generally unenforceable, employers still attempt to use non-solicitation clauses as a partial substitute. The enforceability of those non-solicitation clauses in California has been the subject of significant litigation.

The "Who Reached Out First" Question

One of the most common practical questions about non-solicitation clauses: if a former colleague reaches out to you with interest in a job at your new company, are you violating your non-solicitation by responding or by passing their resume along?

The general answer is that passive acceptance of inbound contact — someone reaching out to you unsolicited — is generally not a violation of a non-solicitation clause. You didn't solicit them; they solicited you. The clause typically prohibits you from reaching out to encourage them to leave, not from accepting applications from people who contacted you.

The legal risk comes when the line blurs. If you reach out to a former colleague under the pretext of catching up but the conversation quickly turns to job opportunities at your new company, that's arguably a violation. If you post publicly about open positions and former colleagues respond, most courts treat that as non-solicitation (you're not targeting specific individuals). If you specifically target and contact former teammates to recruit them, that's solicitation.

Enforceability by State

Non-solicitation clauses are generally more enforceable than non-competes across most states, because courts tend to view them as more narrowly tailored restrictions on specific harmful acts (poaching employees or customers) rather than broad restrictions on where you can work.

Most states that apply a reasonableness analysis to non-competes apply a similar (but more permissive) analysis to non-solicitation clauses. The key factors: duration (1-2 years is typically reasonable), scope (limited to customers or employees you actually interacted with), and the employer's legitimate interest being protected (preventing use of employer-invested relationships to immediately benefit a competitor).

Texas, Washington, New York, and most other non-California states have generally found employee non-solicitation clauses enforceable when the duration and scope are reasonable.

California's Restrictions on Employee Non-Solicitation

California's treatment of non-solicitation clauses has evolved. The landmark case is AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (Court of Appeal, 2018), which held that employee non-solicitation agreements that prevent employees from recruiting former colleagues may be void under California Business and Professions Code Section 16600 — the same statute that voids non-competes.

The AMN Healthcare reasoning: an employee non-solicitation clause prevents employees from practicing their trade in recruiting, which is arguably the kind of restraint on trade that Section 16600 prohibits. Subsequent cases have extended this analysis, though there's some ongoing uncertainty about the exact scope.

The practical implication for California employees: even if your employment agreement includes an employee non-solicitation clause, that clause may be void in California under the post-AMN Healthcare legal landscape.

What to Look For

When reviewing non-solicitation provisions in your employment agreement:

• Scope of restricted activity: Is the customer non-solicitation limited to customers you personally interacted with, or does it cover all of the company's customers globally?
• Employees covered: Is the employee non-solicitation limited to employees you worked with directly, or does it cover all company employees?
• Duration: What's the time period? 12-18 months is typical; longer durations may face scrutiny.
• Geographic scope: Is there one, or does it apply nationally or globally?
• California considerations: If you're in California, the enforceability analysis is different from other states — particularly for employee non-solicitation.

The Bottom Line

Non-solicitation clauses often fly under the radar because people focus on the non-compete section — but they can meaningfully restrict your ability to build your team or serve your former clients after leaving. Before signing, paste your employment agreement into dott.legal for a free AI risk analysis that covers both the non-compete and non-solicitation provisions. For situations involving a startup where recruiting is essential or a customer-facing role with high-value relationships, attorney-validated review is $349 with 24-hour turnaround.