Negotiating a Non-Solicitation Clause: What to Push Back On
Non-solicitation clauses restrict you from recruiting employees, contractors, or clients away from the other party after the relationship ends. While less restrictive than non-competes, these clauses still deserve careful negotiation.
Types of Non-Solicitation Clauses
- Employee non-solicitation: Prevents you from hiring or recruiting the other party's employees.
- Client non-solicitation: Prevents you from doing business with or soliciting the other party's clients or customers.
What to Negotiate
- Duration: Push for the shortest reasonable period. Six months to one year is common. Anything beyond two years is often considered unreasonable by courts.
- Scope of restricted contacts: Narrow the clause to people you actually worked with, not the entire company's employee or client roster.
- Definition of "solicitation": Clarify what counts. Does responding to an inbound inquiry from a former client count as solicitation? It should not, but some broadly drafted clauses could be read that way.
- Carve-outs for existing relationships: If you have pre-existing relationships with clients or employees, negotiate an exception so those contacts remain available to you.
- General advertising exception: Ensure that general job postings or marketing are not considered solicitation.
Red Flags
- Clauses covering all company clients, not just those you interacted with
- Duration exceeding two years
- No distinction between active solicitation and responding to inbound contact
- Penalties or liquidated damages that seem disproportionate
When to Consult a Lawyer
If you work in a relationship-driven industry (sales, consulting, recruiting), non-solicitation clauses can significantly impact your career. Consider having an employment attorney evaluate the scope and enforceability before signing.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.