Non-Solicitation Clauses in Nebraska: A Distinct Analysis
Nebraska's Distinction Between Non-Compete and Non-Solicitation
Nebraska is known for being one of the most restrictive states regarding non-compete agreements. Under Nebraska Revised Statute Section 59-1601 et seq., broad non-competes are generally disfavored. However, Nebraska courts have been more receptive to narrowly drawn non-solicitation clauses, recognizing them as less restrictive than full non-competes.
The Nebraska Supreme Court in Polly v. Ray D. Hilderman & Co. and AmeriSpec v. Metro Inspection Services has acknowledged that customer non-solicitation restrictions may be reasonable even where broader non-competes would fail.
Enforceability Test
Nebraska courts apply a reasonableness test to non-solicitation clauses:
- Protectable business interest: The employer must identify a specific interest, such as established customer relationships or confidential customer information
- Not broader than necessary: The restriction must be the minimum needed to protect the employer's interest. Nebraska courts are strict about this requirement
- Reasonable duration: One to two years is the typical enforceable range
- Limited scope: Only customers the employee actually worked with should be covered
- Adequate consideration: Employment at the time of signing is generally sufficient
Why the Distinction Matters
Because Nebraska is hostile to non-competes, many employers draft non-solicitation clauses instead. Courts will look at whether the clause truly restricts only solicitation (reaching out to specific customers) or whether it practically prevents the employee from working in their industry. If it is the latter, the clause may be treated as an unenforceable non-compete.
Red Flags
- A "non-solicitation" clause that covers all customers, effectively preventing competition
- Language that includes passive acceptance of customer business
- Duration exceeding two years
- No geographic or customer limitation
- Overly broad definition of solicitation
When to Consult a Lawyer
Consider consulting a Nebraska employment attorney if your non-solicitation clause seems to function more like a non-compete, if the scope of restricted customers extends beyond those you actually served, or if a former employer is threatening enforcement.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.