Non-Solicitation Clauses in D.C. After the Non-Compete Ban
D.C.'s Non-Compete Ban and Non-Solicitation
The District of Columbia enacted the Ban on Non-Compete Agreements Amendment Act of 2020, which took full effect on October 1, 2022. This law is one of the broadest non-compete prohibitions in the country. However, the law's impact on non-solicitation clauses requires careful analysis.
Does the Ban Cover Non-Solicitation?
The D.C. ban targets agreements that prohibit employees from working for competitors or operating competing businesses. The statute's definition focuses on non-compete provisions specifically. This means:
- Narrow non-solicitation clauses that only restrict active outreach to specific customers may fall outside the ban's scope
- Broad non-solicitation clauses that effectively prevent an employee from working in their field could be treated as non-competes subject to the ban
- The D.C. Department of Employment Services has indicated that true non-solicitation provisions (as opposed to disguised non-competes) are generally not covered
Common Law Still Applies
For non-solicitation clauses that fall outside the ban, D.C. courts apply common law reasonableness principles:
- Legitimate business interest: Customer relationships, trade secrets, or confidential information
- Reasonable scope: Restricted to customers the employee actually served
- Reasonable duration: One to two years is typical
- Not oppressive: The restriction cannot effectively eliminate the employee's ability to work
- Adequate consideration: Employment at the time of signing is generally sufficient
Red Flags
- A clause labeled "non-solicitation" that effectively prevents all competitive work (likely covered by the ban)
- Restrictions on all company customers, not just those you served
- No written notice of the restriction as required by D.C. law
- Duration exceeding two years
- Employer retaliation for questioning the enforceability of the clause
When to Consult a Lawyer
Consider consulting a D.C. employment attorney if you believe your non-solicitation clause is broad enough to be covered by the non-compete ban, if your employer is threatening enforcement, or if you need to understand the line between permissible non-solicitation and prohibited non-compete provisions in D.C.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.