Non-Solicitation Agreement Generator

A non-solicitation agreement is a restrictive covenant that prohibits an individual, typically a departing employee or contractor, from soliciting the company's clients, customers, or employees for a specified period after the end of the employment or business relationship. Unlike a non-compete agreement, which broadly restricts where someone can work, a non-solicitation agreement is narrowly focused on preventing the individual from using relationships and knowledge gained during their tenure to divert business or talent away from the former employer. This narrower scope generally makes non-solicitation agreements more likely to be enforced by courts compared to broader non-compete restrictions.

The enforceability of non-solicitation agreements varies significantly by state. California Business and Professions Code Section 16600 broadly prohibits agreements that restrain anyone from engaging in a lawful profession or business, and California courts have generally held that non-solicitation agreements restricting the solicitation of customers are void under this statute, though non-solicitation of employees may receive different treatment. At the federal level, the FTC non-compete rule issued in 2024 has created uncertainty about the future of restrictive covenants more broadly, though its applicability to non-solicitation agreements remains contested. Other states apply a reasonableness test, examining whether the restriction is necessary to protect legitimate business interests such as trade secrets, customer relationships, or goodwill.

Courts that enforce non-solicitation agreements require that they be reasonable in scope, duration, and geographic reach (if applicable). Most enforceable agreements cover a period of 12 to 24 months, though the appropriate duration depends on the nature of the business and the employee's role. The blue pencil doctrine, applied in many states, allows courts to modify overly broad restrictions rather than invalidating the entire agreement. Some jurisdictions require that the restriction be supported by independent consideration beyond at-will employment, meaning the employee must receive something of value (such as a signing bonus, promotion, or access to confidential information) in exchange for agreeing to the restriction. Garden leave provisions, which pay the employee their salary during the restriction period, significantly increase enforceability.

A well-drafted non-solicitation agreement should clearly define what constitutes "solicitation" and identify the specific categories of individuals or entities that cannot be solicited. Passive acceptance of business from former clients who initiate contact on their own is generally not considered solicitation, but the line between passive acceptance and active solicitation can be blurry. The agreement should also address whether it covers indirect solicitation through third parties, social media contact, and participation in general marketing activities that might reach restricted individuals. When combined with a non-compete agreement and confidentiality agreement, a non-solicitation agreement forms part of a comprehensive protection strategy for the employer's business interests.