Restrictive Covenants: Non-Solicit

May 22, 2023

We are continuing our discussion of restrictive covenants this week with an overview of non-solicit provisions.  In essence, a non-solicit provision prohibits a former employee from soliciting its former employer’s current, prior or prospective customers and/or employees for a specified period of time.

In general (it varies State by State), courts are more likely to enforce a non-solicit of employees or customers clause than a strict non-compete provision.  The main factors that a court will look at include whether the non-solicit:

  • provides adequate consideration for the employee’s agreement to this restrictive covenant;
  • has a valid, protectable interest in having the non-solicit provisions enforced; 
  • imposes restrictions on the geographic scope, duration, and type of prohibited activities that are reasonably limited to protect the employer’s protectable interest; and
  • allows the employee to earn a livelihood in their field of work.

The bottom line is that like a non-compete, the non-solicit provision typically must be fair and reasonable.   If you have questions, please make sure you follow up with your professional business advisors.

Here are a few other things that may be of interest:

As always, please don’t hesitate to email myself (, Andy Miller (, Christian Miller (, Erik Spurlin (, Brad Leber ( or anyone in our office with questions or comments.  

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