Negotiation Strategy

How to Negotiate Non-Solicitation Clauses

Practical strategies to limit the scope, duration, and impact of non-solicitation provisions while maintaining a constructive negotiating relationship.

🎯 Overview: What You're Negotiating

Non-solicitation clauses restrict your ability to recruit employees from the other party. While less restrictive than non-compete clauses, they can still significantly impact your hiring flexibility - especially if you're actively growing or if both companies operate in the same talent pool.

Your negotiation goals typically include:

  • Limiting duration to 6-12 months rather than 18-24 months
  • Narrowing scope to employees you actually meet, not the entire company
  • Adding exceptions for general advertising, unsolicited applications, and recruiting agencies
  • Ensuring mutuality so both parties are equally bound
  • Removing or capping liquidated damages provisions

🕑 Strategy 1: Negotiate Duration

Duration is often the easiest element to negotiate because it's a clear, measurable term that both parties can understand and compromise on.

Duration Enforceability Recommendation
6 months Highly enforceable Ideal target for receiving party
12 months Generally enforceable Standard balanced position
18 months Jurisdiction dependent Push back; often negotiable
24+ months Frequently challenged Strong grounds for pushback

Sample Negotiation Language

"We understand your interest in protecting your team, and we share that concern for our own employees. However, a 24-month restriction significantly exceeds industry norms and may create enforceability issues. We'd propose a 12-month mutual restriction, which courts consistently uphold and provides meaningful protection for both parties."

👥 Strategy 2: Limit Covered Personnel

Broad clauses covering "any employee" of the other party are overreaching. Push to limit coverage to employees you actually interact with during the NDA relationship.

❌ Avoid This

"Any employee, contractor, or consultant of the Disclosing Party" - This could mean thousands of people you've never met.

✅ Push For This

"Employees with whom the Receiving Party had direct, material contact during discussions under this Agreement" - Limited and reasonable.

Sample Negotiation Language

"We're comfortable agreeing not to solicit employees we actually meet during our discussions. However, restricting us from hiring anyone from your 5,000-person company - including people in unrelated departments we'll never encounter - goes beyond protecting the NDA relationship. We'd propose limiting this to employees directly involved in our discussions."

✅ Strategy 3: Essential Exceptions to Demand

The following exceptions are considered standard and reasonable. If any are missing from the proposed clause, negotiate to add them:

  • ✓
    General Advertising Exception Job postings on your website, LinkedIn, job boards, or other public platforms should never trigger liability - even if the other party's employees respond.
  • ✓
    Unsolicited Applications You should be free to hire anyone who independently applies for a position without any encouragement from you.
  • ✓
    Recruiting Agency Carve-out If a headhunter presents a candidate who happens to work for the other party, that shouldn't constitute solicitation - unless you specifically directed them to target that company.
  • ✓
    Former Employees Hiring someone who left the other party's employment (voluntarily or involuntarily) before you approached them should be permitted, typically after a 30-90 day cooling-off period.
  • ✓
    Employee-Initiated Contact Explicitly state that employees retain the right to seek new opportunities and that responding to employee-initiated outreach is not solicitation.

⚠ Watch Out For This Language

"This restriction shall apply regardless of whether the individual responds to general advertising or approaches the Receiving Party on an unsolicited basis." This eliminates the most important exceptions and should be firmly rejected.

⚖ Strategy 4: Non-Solicit vs. Non-Hire

There's a critical distinction between these two types of restrictions:

Non-Solicitation (More Reasonable)

Prohibits you from actively recruiting or initiating contact to lure employees away. You can still hire them if they come to you independently.

Non-Hire (More Restrictive)

Prohibits hiring regardless of who initiated contact. Even if the employee finds your job posting and applies independently, you can't hire them.

Sample Negotiation Language

"We've noticed the clause includes 'non-hire' language that would prevent us from hiring your employees even if they independently apply through our public job postings. This effectively restricts employee mobility and may be unenforceable in several states. We'd propose limiting this to a non-solicitation restriction - preventing active recruitment while allowing natural career movement."

💡 Negotiation Leverage

Non-hire provisions face increasing judicial skepticism, particularly in California and states that prioritize employee mobility. Pointing out potential unenforceability can help convince the other party to accept a non-solicitation-only approach.

💰 Strategy 5: Address Liquidated Damages

Some non-solicitation clauses include preset damage amounts (liquidated damages) for violations - often 100-200% of the hired employee's annual salary. These can create enormous liability.

  1. First, Try to Remove Entirely Argue that actual damages are readily calculable (recruiting costs, training expenses) and liquidated damages are therefore inappropriate.
  2. If Removal Fails, Negotiate Caps Push for reasonable caps such as 3-6 months of the employee's salary, or a fixed dollar amount.
  3. Add Mitigation Requirements Require the other party to mitigate damages by attempting to retain the employee or hire a replacement before claiming damages.
  4. Ensure Exclusivity If liquidated damages remain, ensure they're the exclusive remedy - not in addition to other damages, injunctive relief, and attorney fees.

Sample Negotiation Language

"The liquidated damages provision - 150% of annual compensation - could expose us to six-figure liability for a single inadvertent hire. Courts often void such provisions as penalties rather than reasonable damage estimates. We'd propose either removing this provision entirely and relying on actual damages, or capping liquidated damages at three months' salary as a reasonable estimate of recruiting and training costs."

👪 Strategy 6: Ensure Mutuality

One-sided non-solicitation clauses that only bind your company should always be challenged. If talent protection is valuable, it's valuable for both parties.

⚠ Red Flag Language

"The Receiving Party shall not solicit..." without corresponding obligations on the Disclosing Party indicates a one-sided provision that favors only the larger or more powerful party.

Sample Negotiation Language

"We notice the non-solicitation restriction applies only to our company. We have talented team members too, and we'd be exposed to the same risks during these discussions. For this provision to be fair and enforceable, it should apply equally to both parties. We'd propose revising to 'Neither party shall solicit...'"

🌎 State Law Considerations

Certain states have strong policies favoring employee mobility that can affect non-solicitation enforceability:

State Key Considerations
California While non-solicitation clauses are generally more enforceable than non-competes, provisions that effectively prevent employees from changing jobs may be challenged under Business and Professions Code Section 16600.
Illinois Recent reforms (Illinois Freedom to Work Act) limit restrictive covenants for lower-wage workers. Non-solicitation provisions must be reasonable in scope and duration.
Massachusetts Requires reasonable restrictions. "Garden leave" requirements for non-competes may influence non-solicitation analysis if restrictions are particularly broad.
Washington Non-compete reforms have heightened scrutiny on all restrictive covenants, including non-solicitation provisions.

💡 Negotiation Leverage

If either party is based in a state with strong employee mobility protections, use this as leverage: "Given the law in [State], an overly broad non-solicitation clause may not be enforceable anyway. We'd both benefit from a reasonable, clearly enforceable provision."

📝 Negotiation Checklist

Before signing any NDA with a non-solicitation clause, confirm:

  • ☐
    Duration is 12 months or less Longer periods face increasing enforceability challenges
  • ☐
    Scope is limited to employees you actually meet Not the entire company workforce
  • ☐
    General advertising exception is included Public job postings should not trigger liability
  • ☐
    Unsolicited application exception is included You can hire people who apply independently
  • ☐
    It's non-solicitation, not non-hire Only active recruitment is prohibited
  • ☐
    The obligation is mutual Both parties are equally bound
  • ☐
    No unreasonable liquidated damages Damages are removed, capped, or reasonable

🔗 Related Resources

Non-Solicitation Clause Language

Copy-paste ready versions of non-solicitation clauses at different protection levels.

Non-Compete Clauses

Even more controversial restrictions - and how to handle them.

Term and Duration

How long the entire NDA relationship - and restrictions - should last.

Non-Circumvention

Related protections for business relationships and introductions.