Non-Solicitation Clauses in Wisconsin: Statutory Standards
Wisconsin's Statutory Framework
Wisconsin governs restrictive covenants under Wisconsin Statutes Section 103.465, which provides that a restrictive covenant is enforceable only if its restrictions are reasonably necessary for the protection of the employer. Wisconsin courts have applied this statute to non-solicitation clauses with notable strictness.
The Section 103.465 Standard
Under this statute, Wisconsin courts evaluate non-solicitation clauses by asking whether the restriction is reasonably necessary to protect the employer's legitimate interest. The Wisconsin Supreme Court in Star Direct v. Dal Pra and Lakeside Oil Co. v. Slutsky established that courts must examine:
- Legitimate employer interest: Customer relationships, trade secrets, or confidential information
- Reasonable time limitation: Wisconsin courts have upheld one to two year restrictions as reasonable
- Reasonable scope: The clause must be limited to specific customers the employee actually served
- Not unduly burdensome or oppressive: The restriction cannot prevent the employee from earning a livelihood
Wisconsin's No-Reformation Rule
This is critical. Wisconsin courts do not reform or blue-pencil overbroad restrictive covenants. Under the rule established in Streiff v. American Family Mutual Insurance, if any part of a restrictive covenant is unreasonable, the entire covenant is void. This applies even if the unreasonable portion could easily be severed. This makes Wisconsin one of the toughest states for employers.
Divisibility Exception
The one narrow exception is if the restrictive covenant contains truly divisible provisions that can stand independently. If a non-solicitation clause is a separate, self-contained provision from other restrictions (like a non-compete), it may survive even if the other provisions are struck down. However, the provisions must be genuinely independent.
Red Flags
- Any overbreadth in the clause (the entire provision may be void)
- Restrictions on customers you never served
- Duration exceeding two years
- Combined non-compete and non-solicitation language in a single clause (if one fails, both fail)
- Vague or expansive definitions of solicitation
When to Consult a Lawyer
Consider consulting a Wisconsin employment attorney if your non-solicitation clause seems overbroad (it could void the entire provision), if you signed a combined agreement with non-compete and non-solicitation terms, or if you are unsure whether your clause meets Section 103.465's strict requirements.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.