Non-Solicitation Clauses in New Jersey: The Court's Test
New Jersey's Common Law Framework
New Jersey does not have a specific statute governing non-solicitation agreements. Instead, courts apply common law principles established in landmark cases, particularly Solari Industries v. Malady (1970) and Whitmyer Brothers v. Doyle (1971). These cases created a three-part test that remains the cornerstone of New Jersey's restrictive covenant analysis.
The Solari/Whitmyer Three-Part Test
New Jersey courts evaluate non-solicitation clauses by asking whether the restriction:
- Protects a legitimate employer interest: Customer relationships, trade secrets, confidential information, or specialized training provided to the employee
- Does not impose undue hardship on the employee: The restriction must not prevent the employee from earning a living
- Is not injurious to the public interest: The clause must not harm the broader public
All three prongs must be satisfied for the clause to be enforceable.
How Courts Apply This Test to Non-Solicitation
- Scope matters: Clauses limited to customers the employee personally served are strongly favored
- Duration: One to two years is typically enforced. New Jersey courts have occasionally upheld longer periods when the employer demonstrated a compelling interest
- Type of activity: Actively reaching out to customers is more clearly prohibited than passively accepting business. Courts examine the specific language closely
- Consideration: New Jersey courts have generally held that employment itself is sufficient consideration, but additional consideration strengthens enforceability
Red Flags
- Restrictions extending to customers the employee never interacted with
- A clause that prevents you from responding when a former client contacts you
- Duration exceeding two years without extraordinary justification
- No clear distinction between active solicitation and passive acceptance of business
- Terms so broad the clause effectively operates as a non-compete
When to Consult a Lawyer
Consider speaking with a New Jersey employment attorney if you are evaluating a non-solicitation clause in a new employment agreement, if you are leaving for a competitor and want to understand what customer contact is permissible, or if your former employer has threatened or initiated litigation.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.