Non-Solicitation Agreement Red Flags: Six Clauses to Check Before You Sign
This page is general information, not legal advice.
A non-solicitation agreement promises that after you leave, you won't go after your former employer's or client's customers or staff. It can show up as its own document, inside an employment contract or offer letter, or in a contractor or severance agreement. It often looks milder than a non-compete, but a broadly written one can do much the same job and keep you away from the people you've spent years working with. This page covers six clauses that often push risk onto you. For each one you get an illustrative example, why it matters, and wording you can propose. Whether these restrictions can be enforced, and how far they can reach, varies a lot by jurisdiction.
The example clauses below are illustrative. They are not taken from any real company's agreement.
1. A "customer" definition that covers everyone
A typical clause might read: "Employee shall not solicit any customer, client or prospective customer of Company or any of its affiliates."
Why it works against you
"Any customer" can include accounts you never touched, in divisions you never worked in. "Prospective customer" may reach any business the company has ever pitched, which you may have no way of knowing. You could break the agreement without realizing it. Tighter definitions tied to your actual relationships are usually easier to defend and easier to follow.
What to ask for instead
Sample wording to propose: "'Customer' means a customer of Company with whom Employee had material business contact during the last 12 months of employment. Company will provide a list of such customers on request at separation."
2. A ban on accepting business, not just asking for it
A typical clause might read: "Employee shall not, directly or indirectly, solicit, accept, service or do business with any Customer."
Why it works against you
Soliciting means reaching out. Accepting or servicing business covers clients who come to you on their own, maybe because they followed you or saw a public job announcement. This kind of "no-service" wording acts more like a non-compete for your existing contacts. See non-compete clauses explained.
What to ask for instead
Sample wording to propose: "This restriction applies only to Employee's active solicitation. It does not prevent Employee from responding to or doing business with a Customer that contacts Employee without solicitation, or from general advertising not aimed at Customers."
3. A no-hire clause that also blocks colleagues who apply to you
A typical clause might read: "Employee shall not solicit, recruit, hire or engage, or assist any other person in hiring, any current or former employee or contractor of Company."
Why it works against you
"Former" employees may include people who left years ago. "Hire or engage" can be broken even when the colleague found the job posting themselves. If you become a manager elsewhere, a clause like this can make routine hiring risky. It also limits your former coworkers' job options, which some jurisdictions view with suspicion.
What to ask for instead
Sample wording to propose: "Employee will not actively solicit any person who was an employee of Company during the last 6 months of Employee's employment to leave Company. General job postings, and hiring a person who responds to them, are not a breach."
4. A long term that can quietly extend
A typical clause might read: "These obligations continue for twenty-four (24) months after termination, and this period shall be extended by any period during which Employee is in breach."
Why it works against you
A long period keeps you on the sidelines through the time your relationships matter most. The extension wording, often called tolling, means the company can claim the clock restarted because of something it alleges you did. You may not know how long you're bound until a dispute is settled.
What to ask for instead
Sample wording to propose: "These obligations end 12 months after the Separation Date. Any extension applies only if a court finds a breach, and only for the length of that breach."
5. Fixed penalties and one-sided legal fees
A typical clause might read: "For each Customer or employee solicited in breach, Employee shall pay Company an amount equal to twelve months of that Customer's revenue or that employee's salary, plus all of Company's legal fees."
Why it works against you
A preset payment can be far larger than any real loss, and the company doesn't have to prove what it lost. One-sided fee terms mean you pay if you lose, but the company doesn't pay if it brings a weak claim. Some agreements also let the company withhold final pay, bonuses or equity. See liquidated damages clauses explained.
What to ask for instead
Sample wording to propose: "Company may recover only actual damages proven to result from a breach. In any dispute, the prevailing party may recover its reasonable legal fees."
6. A restriction that applies however you leave, anywhere
A typical clause might read: "These restrictions apply regardless of the reason for termination and extend to Customers and employees of Company's parents, subsidiaries, successors and assigns worldwide."
Why it works against you
If you're laid off without cause, you still carry the full restriction with nothing in return. Covering affiliates and successors can multiply the number of off-limits contacts, especially after a merger. Your original employer could sell the business, and the buyer may claim the right to enforce it.
What to ask for instead
Sample wording to propose: "These restrictions do not apply if Company ends Employee's employment without cause, unless Company pays severance for the full restricted period. They cover only Company and affiliates for which Employee performed services."
Also worth a look
Non-solicitation terms often sit next to confidentiality duties, so check NDA red flags as well. Look for clauses that pick a far-away court or law (see governing law and jurisdiction clauses explained). If you're a freelancer, watch for client non-solicits that stop you working directly with the end client (see independent contractor agreement red flags). Exit paperwork sometimes adds new restrictions too, so see severance agreement red flags.
Scan your own agreement free
Small wording choices decide whether a non-solicit is reasonable or a non-compete in disguise. Upload your agreement to the ScanMyTerms employment contract review as a PDF, DOCX, TXT or MD file, or just take a photo of it. In about a minute it lists the clauses that work against you, with risk level, exact wording, why each one hurts and how to change it. The free preview needs no sign-up and shows the risk count and the first two findings. The full report is $5. ScanMyTerms doesn't use your documents to train AI models, and reports are deleted after 7 days.
This page is general information, not legal advice. Rules on non-solicitation agreements vary by jurisdiction, so for decisions about a specific agreement, talk to a qualified employment lawyer where you live.
Sources
- All clause examples on this page are illustrative and written for this guide. They are not quoted from any real company's agreement.
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