Prevents parties from recruiting or hiring each other's employees and contractors during and after confidential business discussions. A common but often contested NDA provision.
⚠ High Risk - Enforceability Issues
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Plain English Explanation
A non-solicitation clause prevents you from actively recruiting, poaching, or hiring employees, contractors, or key personnel from the other party. This restriction typically applies during the NDA term and for a specified period afterward (commonly 12-24 months).
The rationale is straightforward: during NDA-protected discussions, you gain inside knowledge about the other party's team - their skills, compensation, job satisfaction, and value to the organization. Non-solicitation clauses prevent you from exploiting this access to steal talent.
Key distinction: Most properly drafted clauses distinguish between "solicitation" (actively recruiting) and "hiring" (responding to unsolicited applications). A well-balanced clause allows you to hire someone who applies through public job postings or reaches out independently.
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Enforceability Considerations
Non-solicitation clauses occupy a middle ground in enforceability - more likely to be upheld than non-competes, but still subject to significant scrutiny. Courts generally examine:
Reasonableness of Duration: 12 months is generally acceptable; 24+ months faces skepticism
Scope of Covered Employees: Limiting to employees you actually met is more enforceable than all employees
Legitimate Business Interest: Protecting confidential information and investment in employees
Employee Mobility Rights: Clauses that prevent employees from changing jobs may be struck down
Jurisdiction
Status
Notes
California
Limited
Generally enforceable if not functioning as de facto non-compete
New York
Enforceable
Upheld with reasonable time/scope limitations
Texas
Enforceable
Must be ancillary to valid agreement; reasonable restrictions
Florida
Enforceable
Strong enforcement; presumption of validity
Illinois
Limited
Recent reforms restrict for lower-wage workers
Massachusetts
Enforceable
Must be reasonable and protect legitimate interests
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Clause Versions - Copy & Paste Ready
NON-SOLICITATION OF EMPLOYEES
During the term of this Agreement and for a period of twelve (12) months following its expiration or termination, neither party shall, directly or indirectly, solicit for employment or engagement any employee or contractor of the other party with whom such party had material contact during the course of discussions or activities under this Agreement, without the prior written consent of the other party.
This restriction shall not apply to:
(a) General advertising or recruitment efforts not specifically targeted at the other party's personnel, including job postings on the soliciting party's website, job boards, or social media;
(b) Responding to unsolicited applications or inquiries from individuals who independently seek employment without encouragement from the hiring party;
(c) Hiring any individual who was terminated by the other party prior to the commencement of recruitment discussions;
(d) Hiring any individual whose employment or engagement with the other party ended more than six (6) months prior to the date of hire; or
(e) Any hiring that results from contact initiated by an independent recruiting firm that was not specifically directed to target the other party's personnel.
Nothing in this Section shall restrict any individual's right to seek or accept employment opportunities of their own choosing.
Analysis: This balanced version protects both parties while including essential carve-outs for general recruiting, unsolicited applications, and employee mobility. The 12-month duration is widely accepted as reasonable by courts.
NON-SOLICITATION
During the term of this Agreement and for a period of six (6) months thereafter, each party agrees not to directly and actively solicit for employment any employee of the other party who was personally introduced or identified by name during discussions under this Agreement.
For purposes of this Section, "solicit" means direct, personal contact initiated by the hiring party specifically to recruit the individual away from their current employer. The following activities shall not constitute solicitation:
(a) Any form of general advertising, job postings, career fairs, campus recruiting, or public recruitment campaigns;
(b) Use of recruiting agencies, headhunters, or staffing firms, regardless of whether such agencies also approach the other party's employees;
(c) Responding to any inquiry, application, or expression of interest initiated by the individual;
(d) Engaging with individuals through professional networking platforms such as LinkedIn, even if such engagement leads to employment discussions;
(e) Hiring any individual who contacts the party through any means other than response to direct, personal solicitation;
(f) Hiring any individual who responds to job opportunities posted on any website, job board, or public forum; or
(g) Any hiring that occurs after the individual's separation from the other party for any reason.
Each party acknowledges that employees have fundamental rights to seek and accept employment opportunities, and this provision shall be interpreted narrowly to avoid restricting legitimate employee mobility.
Why this favors the receiving party: Shorter 6-month restriction, narrow definition of solicitation limited to direct personal contact, extensive carve-outs for virtually all common recruiting methods, and strong language protecting employee mobility rights.
NON-SOLICITATION AND NON-HIRE COVENANT
During the term of this Agreement and for a period of twenty-four (24) months following the expiration or termination hereof for any reason, the Receiving Party covenants and agrees that it shall not, directly or indirectly, for itself or on behalf of any other person, firm, corporation, or other entity:
(a) Solicit, recruit, hire, retain, or engage as an employee, independent contractor, consultant, agent, or in any other capacity, any person who is or was at any time during the term of this Agreement an employee, contractor, or consultant of the Disclosing Party;
(b) Encourage, induce, or attempt to induce any employee, contractor, or consultant of the Disclosing Party to terminate, reduce, or modify their relationship with the Disclosing Party;
(c) Provide any information about the Disclosing Party's personnel to any recruiting firm, employment agency, staffing company, or prospective employer;
(d) Refer the Disclosing Party's personnel to any third party for potential employment or engagement opportunities; or
(e) Assist, facilitate, or participate in any manner with any third party's efforts to engage in any of the foregoing activities.
This restriction shall apply regardless of whether the individual responds to general advertising, approaches the Receiving Party on an unsolicited basis, is referred through any intermediary, or is contacted through professional or social networking platforms.
The Receiving Party acknowledges that the Disclosing Party has invested substantial resources in recruiting, training, and developing its personnel, and that a breach of this covenant would cause irreparable harm. In the event of any breach or threatened breach, the Disclosing Party shall be entitled to injunctive relief without the requirement of posting bond, in addition to all other remedies available at law or in equity, including liquidated damages in an amount equal to one hundred fifty percent (150%) of the first year's compensation paid or offered to the hired individual.
Warning - Aggressive Terms: This one-sided clause includes a 24-month restriction, eliminates all standard exceptions (including unsolicited applications), applies to all personnel regardless of contact, and includes severe liquidated damages. Courts in many jurisdictions may find portions unenforceable as overly restrictive of employee mobility.
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Common Enforceability Issues
Overbroad Scope: Covering all employees rather than those the party actually met often leads courts to narrow or void the clause
Unreasonable Duration: Restrictions beyond 18-24 months face increasing judicial skepticism
No Unsolicited Exception: Clauses that prohibit hiring employees who independently apply are frequently challenged
Third-Party Restrictions: Provisions barring cooperation with recruiters may be deemed restraints of trade
Employee Rights: Courts increasingly protect employee mobility, especially for lower-wage workers
Lack of Consideration: Non-solicitation provisions added after employment begins may lack enforceability
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Key Considerations
1
The "General Advertising" Exception is Critical: Always ensure that responding to public job postings is clearly permitted. Without this, you could face liability for hiring someone who found your job listing on LinkedIn.
2
Limit Covered Personnel: Push to restrict the clause to employees you actually interacted with during NDA-covered discussions, not the counterparty's entire workforce.
3
Ensure Mutuality: Non-solicitation obligations should run both ways. Reject one-sided provisions that only restrict your company.
4
Watch for "Non-Hire" vs. "Non-Solicit": These are different. Non-hire provisions (prohibiting all hiring regardless of who initiated contact) are more restrictive and less enforceable.
5
Beware Liquidated Damages: Preset damage amounts can be devastating. If unavoidable, negotiate caps (e.g., 3 months' salary) and ensure amounts are reasonable.