Non-Compete Agreement Analyzer
Non-Compete vs. Non-Solicitation: Key Differences and How Each Is Enforced
Non-competes and non-solicitation agreements are different legal tools with different enforcement standards. Learn what each one prohibits and which courts take more seriously.
Many employment agreements include both a non-compete clause and a non-solicitation clause, and employees often treat them as the same thing. They're not. They restrict different activities, they're enforced differently by courts, and the legal landscape for each is quite different. Understanding which type of restriction you're actually dealing with is essential before you make any career moves.
At a Glance
Sections
7
FAQs answered
5
Reading time
5 min
Tool available
$79.99
What a Non-Compete Prohibits
A non-compete agreement (also called a covenant not to compete) prohibits you from working for a competitor or starting a competing business for a defined period after leaving your employer.
Typical language: 'Employee shall not, for a period of [X] months following termination, directly or indirectly engage in any business that competes with Employer within [territory].'
What it restricts: Where you work and for whom. It doesn't just limit client contacts — it can prevent you from taking an entirely new job if that job is at a competitor.
Who it affects most: Sales people, software engineers, senior managers, executives, and anyone with substantial access to confidential business strategy or trade secrets.
What a Non-Solicitation Prohibits
A non-solicitation agreement restricts your right to contact and do business with certain people after leaving — typically your former employer's clients and/or coworkers.
There are actually two types:
Client non-solicitation: You cannot actively solicit former clients or customers for a period after leaving. You generally can still work for clients who proactively reach out to you.
Employee non-solicitation (anti-poaching): You cannot recruit your former coworkers to leave and join you at a new employer or your own business.
What it restricts: Whom you contact, not where you work. You can still work at a competitor — you just can't call your old clients and try to take their business.
Enforceability: Why Non-Solicitations Face Less Scrutiny
Courts are considerably more willing to enforce non-solicitation agreements than non-competes, for a simple reason: non-solicitations are less restrictive. They don't prevent you from working — they just limit certain contacts.
The logic: Client relationships were built on the employer's time and resources. The employer has a legitimate interest in not having those relationships immediately transferred to a competitor. This is easier to justify than a blanket prohibition on where you work.
The consequence: Even in states that restrict or ban non-competes (like Illinois for low-wage workers), non-solicitation agreements remain enforceable. California is a notable exception — both non-competes and non-solicitation agreements are severely restricted, though the latter can be more nuanced.
For employees: even if your non-compete is unenforceable, your non-solicitation clause may be perfectly valid.
The California Exception
California treats non-solicitation clauses differently from most states. Under California Business & Professions Code § 16600, agreements that prevent former employees from soliciting former clients may also be void, because they functionally restrict the employee's ability to engage in their trade.
In 2008, the California Supreme Court's decision in Edwards v. Arthur Andersen held that California's ban on post-employment non-competes is sweeping, not subject to a 'reasonableness' exception.
Subsequent cases have debated how broadly this applies to non-solicitation clauses. The current state of California law: client non-solicitation provisions that prevent employees from working with clients who seek them out are likely void. Active 'do not contact' restrictions may have more traction in limited circumstances.
If you're in California, both provisions face significant legal headwinds.
Anti-Poaching Agreements: The Employee Non-Solicitation
Employee non-solicitation clauses (anti-poaching provisions) prohibit you from recruiting your former coworkers. They're generally easier to enforce than client non-solicitations because the protected interest (retaining staff) is clearer and the restriction is narrower.
What 'solicitation' means: Actively approaching former coworkers and encouraging them to leave for your new employer. It does NOT mean:
- Accepting applications from former coworkers who find you on their own
- LinkedIn posts advertising open roles that your former coworkers happen to see
- Telling a former coworker 'I'm at Company X now and we're hiring' in general conversation
The distinction between active solicitation (prohibited) and passive acceptance (usually allowed) is litigated frequently.
Red flag anti-poaching provisions: Blanket prohibitions on 'any contact' with former coworkers — these go beyond what's typically necessary and are overreaching.
What Counts as Solicitation vs. Passive Contact
This is where many real cases turn:
Active solicitation (typically prohibited):
- Cold-calling former clients to pitch services
- Sending targeted emails to former clients announcing you've started a competing business
- Reaching out specifically to invite clients to move their business to you
Passive/responsive contact (typically allowed):
- A former client calls you after hearing you changed jobs and asks if you can continue serving them
- A former client finds your website and contacts you directly
- A mutual professional connection introduces a former client to you
Courts generally distinguish between going out and getting clients (solicitation) versus clients coming to you (acceptable competition). This is a fine but important line.
Tip: If a former client contacts you proactively, document the outreach with timestamps to establish the initiative was theirs.
Practical Strategies for Each Restriction Type
For non-competes:
- Evaluate enforceability based on your state, scope, and duration
- If unenforceable, understand you bear the burden of raising that in court if sued
- Get an attorney opinion before taking a directly competitive role
For client non-solicitations:
- Do not actively market to your former clients during the restricted period
- Document any contacts initiated by former clients (emails, calls they initiate)
- Remove former client contact information from your personal devices to avoid arguments that you 'had access'
- Advise your new employer of the restriction so they don't inadvertently have you call those clients
For employee non-solicitations:
- Do not target or actively recruit specific former coworkers
- Use general job postings and recruiting channels; let former coworkers come to you
- Accept applications from former coworkers who apply through normal channels
Frequently Asked Questions
Quick answers to the most common questions on this topic.
Can I be sued for non-solicitation if a client contacts me first?
+
Usually no — most courts distinguish between solicitation (you reaching out) and responsive communication (them reaching out). Document that the client initiated the contact: save the email, note the date of their call. This evidence is your defense.
Does a non-solicitation apply to future clients I develop at the new company?
+
No. Non-solicitation applies only to clients of your former employer during your employment. New clients you develop at your new company have no relationship with your former employer and aren't covered.
My non-compete is unenforceable — does that affect the non-solicitation?
+
No. They're evaluated independently. A court can void the non-compete and enforce the non-solicitation. Courts routinely split the baby this way. Don't assume invalidating the non-compete frees you from the non-solicitation.
What is a reasonable duration for a non-solicitation agreement?
+
Courts generally find 1–2 years reasonable for client non-solicitations. After 2 years, client relationships have typically turned over and protecting them becomes harder to justify. For employee non-solicitations, 1 year is common.
Can I tell my former clients I changed jobs without violating the non-solicitation?
+
Typically yes — a general professional announcement of your new role is not solicitation. But avoid anything that looks like an invitation to bring their business to your new employer. 'I've joined Company X, and I look forward to continuing to serve you there' is borderline; 'I've joined Company X, and I hope you'll consider bringing your business there' is solicitation.