Non-Solicitation of Customers vs Employees: Two Clauses

Contracts routinely bundle these into one clause headed "Non-Solicitation", and readers treat them as a single restriction. They are two different promises protecting two different interests, and they should be negotiated separately.

Customer non-solicitation

What it blocks: approaching the employer's clients to win their business after you leave.

The interest protected: client connection — the relationship the employer paid you to build and maintain on their behalf.

How courts treat it: favorably, compared with a non-compete. It is narrow, it protects an interest everyone recognizes, and it does not stop you working in your field.

Where the negotiation is. Three variables decide how much this clause actually costs you:

• Which customers? "Any customer of the Company" is over-broad and frequently narrowed by a court anyway. Ask for "customers with whom you had material dealings in the twelve months before termination".
• How long? Six to twelve months is typical. Longer needs a genuinely long sales cycle to justify it.
• Solicit, or deal? This is the one that catches people out.

Solicitation versus dealing

A non-solicitation clause stops you approaching the client. If the client approaches you unprompted, you are generally free to act — and clients do follow people.

A non-dealing clause stops you doing business with them at all, however the contact arose. It removes the "they came to me" defense entirely.

Non-dealing is significantly more restrictive. It is also enforceable in many jurisdictions where it is limited to clients you personally handled, precisely because it is easy to police and narrowly targeted. If your clause says "solicit or deal with", you are looking at the stronger version — and reducing it to solicitation alone is a reasonable ask.

Employee non-solicitation

What it blocks: recruiting former colleagues to join you.

The interest protected: workforce stability — stopping a departing manager taking their whole team.

How courts treat it: generally enforceable when limited to people you worked with and to a modest period, more sceptically when it covers the entire company or lasts years. Antitrust regulators in several jurisdictions have taken an interest in agreements between employers not to hire each other's staff; that is a different arrangement from a clause in your own contract, but it has made courts more attentive to how far these clauses reach.

The variable that matters: solicitation versus hiring.

Solicitation versus no-hire

A non-solicitation of employees clause stops you approaching former colleagues. A no-hire clause stops you employing them even if they apply to you unprompted, having seen a public advert.

No-hire clauses are aggressive. They restrict the third party's freedom to work, not just yours, and they can be defeated by nothing you actually did. Ask for:

• The restriction limited to senior employees you personally worked with
• Solicitation only, not hiring
• An explicit carve-out for responses to general public advertising
• Six to twelve months, not two years

Reading the two together

Here is the practical asymmetry: most people negotiate hard on the non-compete and accept the non-solicits without comment. In reality the non-compete is the clause most likely to be narrowed or struck down, and the non-solicits are the clauses most likely to be enforced exactly as written.

If your next move involves taking clients or colleagues with you, the non-solicits are the clauses that will actually stop you.

What good drafting looks like

For twelve months after termination, the Employee shall not solicit the business of any customer of the Company with whom the Employee had material dealings in the twelve months preceding termination, nor solicit any employee of the Company of Manager grade or above with whom the Employee worked during that period. Nothing in this clause prevents the Employee from employing any person who responds to a general advertisement not specifically directed at employees of the Company.

Everything in that clause is bounded: the period, the customers, the seniority, the personal connection, and the advertising carve-out.

FAQ

What is the difference between non-solicitation of customers and non-dealing?

Non-solicitation stops you approaching the customer. Non-dealing stops you doing business with them at all, including where they approached you. Non-dealing is materially more restrictive and is the version most likely to catch you out.

Can I hire a former colleague if they contact me first?

Under a pure non-solicitation clause, usually yes — you did not solicit them. Under a no-hire clause, no: it blocks the employment however the contact arose. Check which one your contract contains, because the wording difference is easy to miss.

How long should an employee non-solicit last?

Six to twelve months is standard and defensible. Longer periods, or clauses covering everyone in the company rather than people you actually worked with, are the ones most likely to be narrowed.

Are customer non-solicits easier to enforce than non-competes?

Yes, substantially. They protect a specific, recognized interest without preventing you earning a living, so courts uphold them far more often. The negotiation should focus on narrowing which customers are covered rather than on removing the clause.

Does answering a job advert count as solicitation?

Generally not — soliciting requires you to initiate. That is precisely why employers add no-hire wording and why a carve-out for responses to general advertising is worth asking for explicitly.

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