Key employee asking me to remove non-solicitation clause from offer - red flag or reasonable?

Trying to hire a senior account manager for my digital marketing agency. Great candidate, 8 years experience, would be managing our top clients ($500K+ in annual billings).

Sent her the offer letter which includes our standard 12-month non-solicitation clause (can't solicit our clients or employees for 12 months after leaving). She came back and asked me to remove it entirely, saying "I don't sign non-solicits as a matter of principle."

Is this a red flag that she's planning to poach clients? Or is this becoming more common? Should I hold firm or negotiate?

This is becoming more common, especially with senior talent who've been burned by overly broad restrictions in the past. A few context questions:

• What state are you in? (Non-solicits are unenforceable in California, limited in several other states)
• What's the exact language of your non-solicit? Does it cover all clients or just ones she worked with?
• Is there any consideration beyond employment? (Severance, signing bonus, equity?)
• What's her current comp vs. your offer?

Her pushback isn't automatically a red flag, but how you handle this negotiation will tell you a lot about whether she's reasonable to work with.

We're in New York. The non-solicit says she can't solicit "any client or prospective client with whom Employee had material contact during employment" for 12 months after leaving. Also can't solicit any employee for 12 months.

Offer is $120K base + 10% commission on her book of business. No signing bonus or equity. Her current comp is around $110K total at a competitor agency.

I copied the non-solicit language from LegalZoom, so I assume it's enforceable?

Your non-solicit is likely enforceable in New York if it's reasonable in scope. The limitation to clients she had "material contact" with is good - that's narrower than "all clients."

However, I see some issues:

• "Prospective client" is vague and probably too broad. How do you define that? Every company in America is a prospective client.
• No consideration: In New York, non-solicits need to be supported by consideration beyond at-will employment. You might need to offer something (signing bonus, severance commitment, etc.)
• Employee non-solicit: 12 months might be reasonable, but courts scrutinize these heavily

LegalZoom templates are generic and may not be enforceable in your specific state/situation. You should have an employment attorney review it.

From a recruiting perspective, senior candidates increasingly refuse to sign non-solicits because:

1. They've built relationships over their career and don't want to burn them
2. They've seen these used as retaliation when employees leave
3. They know most companies won't actually enforce them (too expensive)
4. They want flexibility to start their own thing someday

The fact that she's being upfront about it is actually a good sign. People who plan to steal clients usually just sign and ignore it.

Could you narrow the scope instead of removing it entirely? Like 6 months instead of 12? Or only cover active clients, not prospects?

That's a good point about being upfront. I've had employees sign and then ignore it when they left.

What if I proposed:

• Remove the "prospective client" language
• Reduce from 12 months to 6 months
• Keep the client non-solicit but only for clients she directly managed
• Keep the employee non-solicit at 12 months

And maybe add a $5K signing bonus as consideration?

I run a similar agency and went through this exact negotiation last year. Here's what I learned:

What worked: 6-month client non-solicit limited to accounts she actively managed + $10K signing bonus with 2-year clawback if she violates it.

What didn't matter: Employee non-solicit. I tried to include it, she refused, I caved. A year later she's still here and hasn't recruited anyone. If employees want to leave, they'll leave regardless of what paper says.

The signing bonus with clawback gave me real leverage. She knows if she poaches clients in first 6 months, I can claw back the $10K plus sue for damages. That's way more enforceable than a standalone non-solicit.

AgencyOwner_Brad's approach is smart. The signing bonus with clawback serves multiple purposes:

• Provides the consideration required for enforceability in New York
• Creates a liquidated damages amount (the clawback) that's easier to enforce than proving damages from solicitation
• Shows good faith - you're giving her something valuable, not just restricting her

I'd also recommend adding a confidentiality provision (separate from non-solicit) that prohibits her from using your client lists, pricing, strategies, etc. Those are often more enforceable than non-solicits because they protect actual trade secrets.

One more thing: if clients contact HER (not the other way around), that's generally not solicitation. Make sure your agreement is clear on this.

This is all super helpful. Going to propose:

• 6-month non-solicit for clients she directly manages (removing prospects and employee non-solicit)
• $7,500 signing bonus with 100% clawback if she violates non-solicit in first 6 months, 50% clawback in months 7-12
• Standard confidentiality/trade secrets provision
• Clarify that clients initiating contact with her doesn't count as solicitation

If she agrees, I'll have an employment attorney review the final language before we both sign.

That's a reasonable proposal. Two quick additions to consider:

1. Define "solicitation" - Make clear whether it means actual engagement/contract, or just contact/proposal. Big difference.
2. Severance commitment - Consider offering 2 weeks severance if you terminate without cause. Gives her some security and strengthens enforceability of the restrictions.

Good luck! Sounds like you're handling this thoughtfully.