Non-Solicitation Clause Explained: Rules, Limits & Drafting (2026)

What Is a Non-Solicitation Clause?

A non-solicitation clause is a contractual provision that prohibits a former employee, contractor, or business partner from actively recruiting the other party's clients, customers, or employees for a defined period after the working relationship ends. It is a type of restrictive covenant that sits between a full non-compete agreement (which bars someone from working in the field at all) and a simple non-disclosure agreement (which covers information only). Courts consistently treat non-solicitation clauses as more enforceable than non-competes because the restriction is narrower: it limits targeted actions toward specific people, not an individual's entire ability to earn a living in their profession.

Key takeaways

• A non-solicitation clause restricts poaching of clients or employees — it does not block someone from going to work for a competitor.
• Courts apply a reasonableness test: scope, duration, geography, and legitimate business interest all factor into enforceability.
• California Business and Professions Code § 16600 generally voids non-solicitation clauses as a matter of public policy, with narrow exceptions for trade-secret protection and business sales.
• The FTC's nationwide non-compete ban was struck down in 2024 and the FTC withdrew its appeal in September 2025 — non-solicitation clauses are governed state-by-state.
• A clause limited to clients and employees the departing person actually worked with, lasting six to twelve months, stands the best chance of surviving a legal challenge.

Non-Solicitation vs. Non-Compete: What's the Practical Difference?

Many employers use the two terms interchangeably, but they create very different obligations.

A non-compete restricts a former employee from working for a competitor or starting a competing business within a specific time frame and geographic area. Courts are hesitant to uphold non-compete agreements that overly restrict an employee's ability to engage in work opportunities within their profession.

A non-solicitation clause is narrower. It does not prevent an individual from taking a new job — even one next door to the former employer — but restricts their actions toward specific, identifiable assets: clients they served or colleagues they worked alongside. Because the restriction is less severe, courts are generally more willing to uphold non-solicitation clauses, provided they are reasonable.

The practical upshot: a former salesperson can join a rival firm and serve new accounts under a non-solicitation clause. What they cannot do is call up the employer's existing customers or recruit their former teammates to follow them.

Feature	Non-Solicitation Clause	Non-Compete Agreement
Bars competitor employment?	No	Yes
Covers specific clients?	Yes	Sometimes
Covers employee recruitment?	Yes (if included)	No
Easier to enforce?	Generally yes	Generally harder
Banned in California?	Largely yes (§ 16600)	Yes (§ 16600)
Banned in Minnesota?	No (Minn. Stat. § 181.988)	Yes
FTC national rule?	Not applicable	Rule struck down (2024)
Typical duration	6–12 months	1–2 years

The Two Main Types of Non-Solicitation Clauses

Client and Customer Non-Solicitation

This type prevents a former staff member or contractor from approaching the company's clients to move that business to a new employer or a competing venture. The key limit courts apply: the clause should only cover clients the departing person actually served. A clause purporting to protect every customer in a company's database — including accounts the person never touched — is likely to be cut down or thrown out entirely. Courts in New York, for example, following BDO Seidman v. Hirshberg (93 N.Y.2d 382, 1999), hold that restrictive covenants must be no greater than required to protect a legitimate employer interest.

A well-scoped example: "For twelve months after termination, the employee will not solicit any client of the company with whom the employee had direct contact or provided services during the twelve months before departure."

Employee Non-Solicitation (No-Poach Provisions)

This type bars a departing employee from recruiting their former colleagues to leave and join them. These provisions can be trickier to apply because even a casual conversation about a job opening could technically constitute solicitation. Courts have held that a no-poach clause broad enough to prohibit ordinary professional networking or a passing conversation about career moves would be overly restrictive and unenforceable (Oliver Wyman, Inc. v. Eielson, 282 F. Supp. 3d 684, S.D.N.Y. 2017).

Tip: Limit the clause to active, direct recruiting efforts — not responding to a former colleague's unsolicited inquiry.

What Makes a Non-Solicitation Clause Enforceable?

Courts in most states apply a multi-factor reasonableness test. You need to clear each hurdle for the clause to hold.

Legitimate Business Interest

The clause must protect something real: established client relationships, trade secrets, proprietary customer lists, or substantial goodwill built at the employer's expense. Protecting against ordinary competition in the open market is not enough.

Reasonable Scope

The restriction must be limited to clients and employees the departing person actually knew and worked with. A blanket restriction covering the entire customer database or every current employee — regardless of contact — has repeatedly been reduced or voided by courts.

Reasonable Duration

Six months to two years is the practical range. Most employment lawyers consider six to twelve months as the sweet spot for client non-solicitation clauses; restrictions beyond two years face heightened scrutiny and courts often deem them unenforceable. The appropriate length correlates with how sensitive the business relationship is and how senior the departing person was.

Geographic or Account-Level Scope

Traditional geographic limits (e.g., within 100 miles of the employer's office) are harder to apply in a digital economy where clients can be anywhere. Modern drafting approaches identify specific accounts or contact categories rather than map-based boundaries.

Adequate Consideration

For new hires, the job offer itself is typically sufficient consideration. For existing employees, courts in many states require something new and tangible — a pay raise, bonus, promotion, or additional vesting — in exchange for signing a non-solicitation clause post-hire. Without fresh consideration, the clause can be challenged as unenforceable.

How to Draft a Non-Solicitation Clause That Holds Up

Drafting a clause that actually works under scrutiny takes more precision than copying boilerplate language. Here's a practical process:

1. Identify what you are actually protecting. List the categories of clients, accounts, or employees at genuine risk — not every name in your CRM. The narrower and more specific the list, the more defensible the clause.

2. Write out prohibited actions explicitly. Define "solicit" — it should include direct contact, indirect contact through third parties, and facilitating solicitation by others. Vague definitions give departing employees room to argue their actions didn't technically qualify.

3. Set a duration tied to your business reality. If client relationships typically refresh every six months, a twelve-month restriction is defensible. If your sales cycles run two years, you may have grounds for a longer window — but get legal counsel before exceeding twelve months.

4. Add a severability clause. If a court finds one part of the non-solicitation clause overbroad, a severability provision keeps the rest enforceable rather than voiding the entire clause.

5. Specify governing law. State which jurisdiction's law governs the agreement. This matters when employees work remotely across state lines. Note that California will apply its own rules regardless of a choice-of-law clause for California-based employees.

6. Pair it with a confidentiality clause. Non-solicitation clauses are stronger when combined with a non-disclosure agreement that protects the underlying customer lists and trade secrets. If the departing employee is also bound by confidentiality obligations, the non-solicitation clause rests on a firmer legal foundation.

You can draft a services agreement or contractor agreement through Pactlio that includes a customizable non-solicitation clause as part of a complete restrictive covenant package. If you want to understand how non-solicitation compares to full non-compete language, see our guide on how to write a non-compete.

Jurisdiction Overview: Key State-by-State Differences

Non-solicitation law is almost entirely state-driven. The table below summarizes the most significant jurisdictions.

State	Non-Solicitation Enforceability	Key Law or Case
California	Generally void for employment	Bus. & Prof. Code §§ 16600, 16600.5
Minnesota	Permitted (non-compete ban carves it out)	Minn. Stat. § 181.988
New York	Enforceable if reasonable	BDO Seidman v. Hirshberg, 93 N.Y.2d 382
Texas	Enforceable if meets statutory requirements	Texas Covenants Not to Compete Act
Florida	Generally enforced; CHOICE Act (2025) strengthened enforcement	Florida CHOICE Act (eff. July 3, 2025)
New Jersey	Balancing test: protect legitimate interest; no undue hardship	Common law reasonableness standard
Virginia	Noncompete restrictions expanding July 1, 2026 (SB170); non-solicitation rules separate	Va. SB170 (signed April 13, 2026)
Georgia	Must include express geographic limit under GRCA	Georgia Restrictive Covenants Act

California deserves special attention. California Business and Professions Code § 16600 voids any contract that restrains someone from engaging in a lawful profession, trade, or business. Courts have applied this to both client non-solicitation (AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., 28 Cal. App. 5th 923, 2018) and employee non-solicitation clauses. The exception: if a non-solicitation clause is narrowly drawn to prevent misuse of genuine trade secrets — such as a proprietary customer list — a California employer may have a viable claim under California's trade secret laws (Cal. Uniform Trade Secrets Act, Cal. Civ. Code § 3426 et seq.). This is a narrow carve-out, not a general workaround.

For more on how California's rules interact with employment agreements, see our employment agreement guide and contract law in California.

The FTC Non-Compete Rule and What It Means for Non-Solicitation

In April 2024, the FTC issued a rule seeking to ban nearly all post-employment non-compete agreements. A federal district court in Texas blocked the rule in August 2024, finding the FTC lacked statutory authority. The FTC appealed, but under the new administration, the FTC formally withdrew its appeal on September 5, 2025, and the rule is now dead.

Critically, the FTC's own enforcement action in the Gateway Services case (filed September 4, 2025) treated non-solicitation clauses as distinct from and generally more permissible than non-competes. The FTC's proposed consent order in that case preserved non-solicitation restrictions covering clients the employee actually worked with, while only restricting non-solicitation of customers the employee had no direct contact with.

The takeaway: there is no federal ban on non-solicitation clauses. Employers must navigate state law, which remains a patchwork — but non-solicitation clauses are substantially more survivable than broad non-competes in almost every jurisdiction.

Common Mistakes to Avoid

• Drafting clauses that cover clients the employee never knew. Courts routinely strike restrictions that go beyond the people the employee actually served. Limit the clause to clients with whom the employee had direct contact within the last twelve to twenty-four months of employment.
• Setting unrealistic durations. Restrictions exceeding two years face serious enforceability challenges. Longer periods need concrete justification tied to your business model.
• Using the same boilerplate for every role. A clause appropriate for a C-suite executive with access to every client relationship is almost certainly overbroad for an hourly worker. Tailor the clause to the person's actual exposure.
• Skipping fresh consideration for existing employees. Handing a non-solicitation clause to a current employee without offering something new in exchange is a common and costly drafting error.
• Ignoring the state where the employee actually works. A Texas-law clause applied to a California-based remote employee will not survive California scrutiny. Always check the law of the state where the employee performs their work.
• Failing to define "solicitation" clearly. Vague language — "contact" or "communicate with" — leaves too much room for argument. Specify direct outreach, indirect outreach, and facilitation through third parties.

For context on how these clauses interact with broader confidentiality protections, see our confidentiality vs. NDA guide. If you're working with freelancers or independent contractors, the contractor vs. employee distinction affects both drafting choices and enforceability.

Sources

• California Business and Professions Code § 16600: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC&sectionNum=16600.
• California Business and Professions Code §§ 16600.1, 16600.5 (SB 699 and AB 1076, eff. January 1, 2024): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC&sectionNum=16600.5.
• FTC Non-Compete Clause Rule (vacated): https://www.ftc.gov/legal-library/browse/rules/noncompete-rule
• FTC Files to Accede to Vacatur (September 5, 2025): https://www.ftc.gov/news-events/news/press-releases/2025/09/federal-trade-commission-files-accede-vacatur-non-compete-clause-rule
• Minnesota Stat. § 181.988 (noncompete ban, eff. July 1, 2023): https://www.revisor.mn.gov/statutes/cite/181.988
• BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999): referenced via https://rpjlaw.com/psst-buddy-want-a-job-a-guide-to-non-solicitation-agreements/
• AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., 28 Cal. App. 5th 923 (2018): referenced via https://www.omm.com/insights/alerts-publications/california-requires-notifying-employees-of-void-noncompete-agreements-by-february-14-2024/
• Oliver Wyman, Inc. v. Eielson, 282 F. Supp. 3d 684 (S.D.N.Y. 2017): referenced via https://rpjlaw.com/psst-buddy-want-a-job-a-guide-to-non-solicitation-agreements/
• A&O Shearman, FTC Non-Compete Enforcement Update: https://www.aoshearman.com/en/insights/federal-trade-commission-noncompete-action-and-enforcement
• Squire Patton Boggs, FTC Non-Compete Rule Abandoned: https://www.squirepattonboggs.com/insights/publications/rule-abandoned-crackdown-continues-the-federal-trade-commissions-new-non-compete-strategy/
• Virginia SB170 (signed April 13, 2026, eff. July 1, 2026): https://www.tradesecretsandemployeemobility.com/category/non-solicit-agreements
• Florida CHOICE Act (eff. July 3, 2025): https://www.tradesecretsandemployeemobility.com/category/non-solicit-agreements
• Texas Covenants Not to Compete Act, Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2011): https://www.texasnoncompetelaw.com/articles/nonsolicitation-agreements/

This article is general information, not legal advice. Laws vary by jurisdiction. Pactlio generates professional drafts for review — have a licensed attorney review anything important.