Non-Solicitation Clause FAQ

A non-solicitation clause prevents you from actively recruiting, poaching, or directly approaching employees of the other party to offer them jobs or consulting work. The key word is "solicit" - meaning you cannot initiate contact with the purpose of hiring them away.

However, most properly drafted clauses do NOT prohibit:

• Hiring someone who applies to your public job posting on their own initiative
• Hiring someone who approaches you independently seeking employment
• General advertising of open positions
• Using third-party recruiters (unless specifically prohibited)

The distinction between "non-solicitation" and "non-hire" is critical. Non-solicitation restricts active recruiting; non-hire prohibits any hiring regardless of who initiated contact.

It depends entirely on how the clause is drafted. Some clauses only cover "employees," while others explicitly include "contractors, consultants, agents, and independent contractors."

If you're the disclosing party: Make sure the clause explicitly covers contractors and consultants if you want to protect those relationships. A clause that only mentions "employees" may not protect your key contractors.

If you're the receiving party: Check the scope carefully. Broader definitions create more restrictions on your hiring flexibility. Push back on overly expansive language that might prevent you from hiring freelancers who work with many companies.

Most non-solicitation clauses in NDAs last for the term of the agreement plus 12-24 months after expiration or termination. Courts generally view these timeframes as follows:

• 6 months: Very short, almost always enforceable, favors the receiving party
• 12 months: Industry standard, widely accepted by courts
• 18-24 months: Still typically enforceable if other terms are reasonable
• Beyond 24 months: Increasing judicial skepticism, may be reduced or struck down

Generally yes, but it depends on the context and your intent. Simply connecting with someone on LinkedIn for professional networking purposes is typically not considered "solicitation."

However, you cross the line if you:

• Send a connection request with a message about job opportunities at your company
• Use LinkedIn InMail to discuss career opportunities
• Message them about compensation, dissatisfaction with their current role, or similar topics designed to entice them to leave

A well-drafted non-solicitation clause should explicitly permit hiring employees who respond to general job postings. This is not considered "solicitation" because you didn't specifically target that individual - they found your posting through normal job search activities.

Key requirements to stay safe:

• The job posting must be publicly available (not sent directly to them)
• You didn't encourage them to look at your postings
• You didn't create the posting specifically to target their company's employees
• They must initiate the application process themselves

Document everything: Keep records showing the job was posted publicly before they applied and that you didn't have any prior communication encouraging them to apply.

This is a gray area that depends heavily on the specific clause language and how you engage the recruiter.

Likely OK:

• Using a general recruiting firm that happens to source candidates from many companies, including the other party
• Not specifically instructing the recruiter to target the other party's employees

Likely NOT OK:

• Specifically instructing the recruiter to target the other party's employees
• Providing the recruiter with names or contact information of specific employees
• Using a recruiter to do indirectly what you cannot do directly

No. Posting open positions on your company's public career page is considered general advertising, not targeted solicitation. This is true even if employees of the other party might see it.

Most well-drafted non-solicitation clauses explicitly carve out "general advertising" or "recruitment efforts not specifically targeted at the other party's personnel." However, verify your specific clause contains this carve-out.

Several strategies can strengthen employee protection:

• Limit exposure: Only introduce key employees to the other party when absolutely necessary
• Define covered personnel specifically: Rather than "all employees," specify "employees with whom the Receiving Party had material contact"
• Include contractors: Ensure the clause covers contractors and consultants, not just W-2 employees
• Reasonable duration: 12-24 months post-termination is standard and enforceable
• Close the recruiter loophole: Address indirect solicitation through third parties

Remember: overly aggressive clauses may be unenforceable or damage the business relationship. Focus on reasonable protections that courts will uphold.

Typical remedies include:

• Injunctive relief: Court order requiring them to stop soliciting and potentially to not hire the employee (though courts are reluctant to prevent someone from taking a job)
• Monetary damages: Compensation for your losses, including recruiting costs to replace the employee, training costs, and potentially lost profits attributable to the employee's departure
• Liquidated damages: If your clause includes a pre-set damage amount (e.g., 150% of the employee's first-year salary), this may apply
• Attorney's fees: If your clause includes a fee-shifting provision

Proving damages can be challenging. Document the value of each employee, their unique knowledge, and the costs you'd incur if they left.

Liquidated damages clauses can be helpful because they:

• Avoid the difficult task of proving actual damages
• Provide a clear deterrent with known consequences
• Speed resolution without extensive litigation over damage calculations

However, there are risks:

• If the amount is too high, courts may strike it down as an unenforceable penalty
• The other party may refuse to sign or demand removal during negotiation
• You're capped at the liquidated amount even if your actual damages are higher

Best practice: Set liquidated damages at a reasonable estimate of your actual anticipated damages - typically 50-150% of the employee's first-year compensation. Include language explaining why actual damages would be difficult to calculate.

If an employee of the other party approaches you unsolicited about employment opportunities, you should be able to have that conversation and potentially hire them - assuming your clause contains the standard "unsolicited application" exception.

Critical steps to protect yourself:

• Document the contact: Save the email, LinkedIn message, or other evidence showing they initiated contact
• Don't encourage prior to contact: Ensure you didn't hint at opportunities before they reached out
• Check your clause: Confirm it contains an unsolicited application carve-out
• Consider timing: If this happens immediately after NDA discussions where you met this person, it may appear suspicious even if technically permitted

Absolutely yes. This is one of the most reasonable and commonly accepted negotiating points. Courts also look more favorably on clauses limited to employees with whom you had "material contact."

Proposed language: "This restriction shall apply only to employees or contractors of the Disclosing Party with whom the Receiving Party had direct, material contact during activities under this Agreement."

Why this works:

• The rationale for non-solicitation is preventing exploitation of inside knowledge gained through NDA discussions
• You have no inside knowledge about employees you never met
• Restricting you from hiring their entire 5,000-person workforce based on three meetings is unreasonable

This depends on your specific clause language. Well-drafted clauses often include exceptions for:

• Employees who were terminated by the other party before you began recruitment discussions
• Employees whose employment ended more than 6 months before the date of hire
• Employees who resigned on their own initiative without any encouragement from you

If your clause lacks these carve-outs: You may still be restricted from hiring them during the non-solicitation period, even though they no longer work for the other party. This is an aggressive position worth negotiating against.

Key argument: The purpose of non-solicitation is to prevent poaching. If the employee already left on their own, there's no poaching occurring and the restriction serves no legitimate purpose.

This can create complications. If you have multiple NDAs with the same company (for different projects, over different time periods), each may contain non-solicitation provisions with different terms.

Steps to take:

• Review all NDAs with that company to identify all applicable restrictions
• Determine which restrictions apply to which employees (based on "material contact" language)
• Identify the most restrictive applicable terms
• Consider whether the employee you want to hire falls under any of the NDAs

If you have ongoing business relationships, consider negotiating a master NDA that consolidates and clarifies all non-solicitation terms going forward.

California presents a complex landscape. While California famously voids non-compete agreements under Business and Professions Code Section 16600, non-solicitation clauses occupy a gray area.

Generally enforceable: Non-solicitation clauses in NDAs between businesses (not employment agreements) that don't function as de facto non-competes

Potentially unenforceable: Clauses that are so broad they effectively prevent the receiving party from operating in its industry, or clauses that function as employee non-competes in disguise

Key factors California courts consider:

• Is this truly about protecting confidential information, or is it restraining competition?
• Does the clause unduly restrict employee mobility?
• Is the scope limited to employees with actual knowledge of confidential information?

Courts may refuse to enforce non-solicitation clauses that are:

• Overbroad in scope: Covering employees with no connection to the NDA discussions
• Excessive in duration: Restrictions beyond 24-36 months face increasing skepticism
• Missing unsolicited exceptions: Prohibiting hiring of employees who independently seek employment
• Functioning as non-competes: So restrictive they prevent normal business operations
• Lacking legitimate purpose: No connection to protecting confidential information
• One-sided: Only restricting one party without reciprocal obligations
• Against public policy: Unduly restricting employee mobility and freedom to work

Even if a court finds a clause partially unenforceable, many jurisdictions allow "blue-penciling" - modifying the clause to make it reasonable rather than striking it entirely.