You just lost a key employee to a competitor.
They’re gone, and now you’re wondering: can they call your best customers? Can they recruit your other team members? You vaguely remember something about a non-solicitation clause in their offer letter—but you’re not sure what it actually covers.
This is a common question for growing companies. So let me break it down in plain English.
Non-Solicitation Is Not the Same as Non-Compete
These two terms get used interchangeably, but they’re very different—and that distinction matters enormously.
A non-compete tries to prevent a former employee from working in your industry at all, or within a certain geographic area, for a period of time. Courts are divided on enforcing these, with significant variation by jurisdiction. Several states—California being the most prominent—have made them essentially unenforceable against employees. As of 2026, the enforceability landscape continues to shift, including ongoing litigation over federal rulemaking. Other states enforce them only if they’re narrowly written. The legal landscape here is shifting fast, and what worked in your state five years ago may not hold up today.
A non-solicitation agreement is narrower. It doesn’t stop someone from working in your industry. It just restricts two specific behaviors for a defined period:
- Soliciting your customers—actively reaching out to clients they knew through your company to win their business away
- Soliciting your employees—recruiting your team members to follow them out the door
Courts are generally more willing to enforce non-solicitation provisions because they’re less restrictive on the individual’s ability to earn a living. They’re not perfect, and enforceability still varies by state, but they’re a more defensible tool than a broad non-compete.
What a Non-Solicitation Clause Can Realistically Protect
Let’s use a concrete example. Imagine you run a 12-person marketing agency. Your account director leaves and joins a competitor.
A well-drafted non-solicitation clause can prevent them from:
- Calling your five biggest clients and saying “Come work with us instead”
- Texting your two most experienced designers to recruit them away
What it typically cannot do is prevent them from:
- Taking a similar job at a competitor
- Working with a client who finds them independently and reaches out first
- Mentioning publicly that they’re available for work
The distinction is active solicitation versus passive contact. [ADDED: Courts generally require affirmative outreach or targeting by the departing employee to constitute solicitation, though the precise line varies by jurisdiction.] That line gets litigated, which is why the language in the agreement matters.
Here’s Where IP Comes In
Most founders miss an important overlap between employment agreements and intellectual property protection.
Your customer list isn’t just a spreadsheet. If it reflects real effort—tracking preferences, purchase history, key contacts, pricing relationships—it may qualify as a trade secret under state trade secret laws (which vary but often follow the Uniform Trade Secrets Act framework). Same with your internal processes, proprietary methodologies, and operational playbooks.
When a departing employee takes that information and uses it to solicit your customers, you’re not just dealing with a contract violation. You may have a trade secret misappropriation claim on top of it.
Employment agreements and IP protection work together most effectively when drafted in coordination. A properly drafted non-solicitation clause, paired with a confidentiality agreement and clear documentation of what constitutes your company’s proprietary information, creates overlapping layers of protection. If one layer doesn’t hold up in your state, another might.
Most early-stage founders have one or none of these in place. The offer letter was a template someone found online, and the confidentiality clause is three vague sentences that wouldn’t survive a challenge.
What to Do Right Now
You don’t need to overhaul everything at once. Start here:
1. Review your current offer letter and employment agreement.
Does it have a non-solicitation clause at all? Is it specific about what’s covered (customers, employees, or both) and for how long? Twelve months is typically more defensible than twenty-four.
2. Document what makes your customer list proprietary.
If you ever need to argue trade secret protection, you’ll need to show you treated it like a secret—limited access, confidentiality policies, clear internal guidelines about what employees can and can’t take when they leave.
3. Check your state’s enforcement posture.
If you have employees in California, New York, Minnesota, or a handful of other states, your non-solicitation provisions may face stricter scrutiny than you expect. This isn’t hypothetical—it affects how you draft these clauses today.
The Bottom Line
The goal isn’t to trap employees or create adversarial relationships. It’s to protect what you’ve built—your client relationships, your team, your internal knowledge—while treating people fairly.
If you’re not sure what your current agreements actually cover, that’s worth finding out before someone walks out the door. What does your current offer letter include? Drop a question in the comments or follow along — we regularly address this kind of practical employment and IP overlap .
The Garcia-Zamor Law Firm provides outsourced in-house counsel combining business law and intellectual property expertise. Led by Ruy Garcia-Zamor (founder and business strategy expert), Elliott Alderman (IP specialist with 40+ years experience), and Claudia Castillo (employment law specialist), our team serves growing companies with strategic legal leadership. Learn more at garcia-zamor.com or call (410) 531-9853.
