Non-Solicitation Clauses in Oregon: Separate from Non-Competes
Oregon's Statutory Framework for Non-Competes
Oregon significantly reformed its non-compete law in 2021 with ORS 653.295, which limits non-compete agreements to 12 months, requires the employee to earn above a salary threshold, and imposes strict notice requirements. However, this statute does not apply to non-solicitation agreements, which are instead governed by common law.
Non-Solicitation Under Common Law
Because Oregon's non-compete statute excludes non-solicitation clauses, these agreements are evaluated under traditional common law reasonableness principles:
- Legitimate business interest: The employer must protect customer relationships, trade secrets, or proprietary information
- Reasonable scope: The restriction should be limited to customers the employee actually served or had substantial contact with
- Reasonable duration: Oregon courts generally favor one to two years as reasonable
- Not unduly restrictive: The clause should not prevent the employee from earning a living
- Adequate consideration: For new hires, the job is sufficient; for existing employees, additional consideration may be needed
Why This Distinction Matters
Because non-solicitation clauses fall outside ORS 653.295:
- There is no statutory salary threshold requirement
- The employer does not need to provide the same advance notice required for non-competes
- The clause can potentially last longer than 12 months
- However, courts still apply common law reasonableness, which provides its own limits
Red Flags
- A clause labeled "non-solicitation" that effectively prevents all competition (may be reclassified as a non-compete subject to ORS 653.295)
- Restrictions covering all company customers, not just those you served
- Duration exceeding two years
- No clear definition of solicitation activities
- Clauses imposed on lower-income employees that would not survive as non-competes
When to Consult a Lawyer
Consider speaking with an Oregon employment attorney if you are unsure whether your clause qualifies as a non-solicitation or a non-compete under Oregon law, if the clause seems broader than your actual customer responsibilities, or if a former employer is pursuing enforcement.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.