Non-Solicitation Agreements

2025-11-05 10:15

You just accepted a new job at a competitor. You want to reach out to former customers who know and trust you. But there’s a problem: you signed a non-solicitation agreement with your previous employer.

Can you contact those customers? Can you recruit your former colleagues to join your new company? What exactly does “solicitation” mean, and when can your old employer enforce these restrictions?

Non-solicitation agreements are increasingly common in Texas employment contracts. Unlike non-compete agreements that restrict WHERE you can work, non-solicitation agreements restrict WHO you can contact after leaving your employer.

This guide explains how Texas courts enforce non-solicitation agreements, the critical differences between customer and employee restrictions, and practical strategies for navigating these agreements without risking legal consequences.

What Is a Non-Solicitation Agreement?

A non-solicitation agreement restricts your ability to contact specific people after leaving your employer. These agreements typically come in two forms:

Customer Non-Solicitation

Prohibits: Actively contacting or soliciting the company’s customers to do business with you or your new employer

Typical language: “Employee agrees not to solicit, contact, or do business with any customer of the Company for a period of [X] years following termination of employment.”

What this means: You cannot actively reach out to customers to take their business away from your former employer.

Employee Non-Solicitation

Prohibits: Recruiting, hiring, or soliciting the company’s employees to leave and work for you or your new employer

Typical language: “Employee agrees not to solicit, recruit, or hire any employee of the Company for a period of [X] years following termination of employment.”

What this means: You cannot actively recruit your former colleagues to join your new company.

Non-Solicitation vs. Non-Compete: Critical Differences

Many people confuse these two types of restrictions. Understanding the difference is crucial:

Element	Non-Solicitation	Non-Compete
What it restricts	WHO you contact	WHERE you work
Can you work for competitors?	YES	NO
Can customers contact you?	YES	Typically YES
Can employees contact you?	YES	N/A
Active vs. passive	Prohibits active solicitation only	Prohibits working in the field entirely
Scope	Narrower	Broader
Enforceability	Generally easier to enforce	Requires reasonableness analysis

Key distinction: A non-solicitation agreement allows you to work for a direct competitor. You simply cannot actively solicit customers or employees away from your former employer.

Example: You leave a medical device sales company to join a competitor.

• Non-compete: You cannot work in medical device sales at all for the restricted period
• Non-solicitation: You CAN work in medical device sales, but you cannot actively contact customers you served at your previous employer

Texas Law on Non-Solicitation Agreements

Like non-compete agreements, Texas non-solicitation agreements are governed by § 15.50 of the Texas Business & Commerce Code. The same basic requirements apply:

1. Ancillary to Another Agreement

The non-solicitation cannot stand alone. It must be part of:

• Employment agreement
• Confidentiality agreement
• Severance package
• Sale of business

2. Reasonable in Scope

The restriction must be reasonable in:

• Time: Duration of the restriction
• Scope: Who is covered (which customers or employees)
• Activities: What is prohibited

3. Supported by Consideration

New employees: The job itself is sufficient consideration

Current employees: Must receive something new in exchange (raise, promotion, bonus, access to confidential information)

What Makes a Non-Solicitation Agreement Reasonable?

Texas courts apply a reasonableness standard when evaluating non-solicitation agreements. Here’s what typically passes muster:

Time Period

Commonly enforced: 1-2 years

Example: “Employee shall not solicit Company customers for a period of one (1) year following termination.”

This is considered reasonable because:

• Customer relationships often evolve within 1-2 years
• Former employer has time to solidify relationships with new representatives
• Not so long that it prevents you from earning a living

Questionable: 3-5 years

Rarely enforced: More than 5 years (unless extraordinary circumstances like sale of business)

Scope of Customers Covered

More reasonable (narrow scope):

• Customers you personally serviced
• Customers with whom you had direct contact
• Active customers during the last year of employment
• Customers in your specific territory

Less reasonable (broad scope):

• All company customers, even those you never met
• Prospective customers who never purchased
• Customers in territories you didn’t serve
• Former customers who hadn’t purchased in years

Example language (narrow and reasonable):
“Customers you personally serviced or had direct contact with during the last 12 months of employment.”

Example language (broad and potentially unreasonable):
“Any person or entity that was a customer or prospective customer of the Company at any time during your employment.”

Scope of Employees Covered

More reasonable:

• Employees you directly managed or supervised
• Employees you worked closely with
• Employees in your department

Less reasonable:

• All company employees, including those in different locations or departments
• Employees you never met or worked with
• Former employees who already left the company

Definition of “Solicitation”

The agreement should clearly define what “solicitation” means:

Prohibited activities typically include:

• Initiating contact with customers to request their business
• Encouraging customers to move their business to your new employer
• Offering incentives or discounts to switch providers
• Actively recruiting employees to leave

Permitted activities typically include:

• Responding to customers who contact you first
• Accepting business from customers who independently seek you out
• Hiring employees who apply to your new company without your solicitation
• General networking at industry events

Customer Non-Solicitation: What’s Enforceable?

Customer non-solicitation agreements are commonly enforced in Texas when they protect legitimate business interests:

Protectable Business Interests

Courts will enforce to protect:

• Customer relationships you developed on the job
• Confidential customer information (pricing, preferences, needs)
• Trade secrets related to customer service
• Goodwill built through company resources

Courts are less likely to enforce when:

• You had no meaningful relationship with the customers
• Customer information is publicly available
• You’re using general skills, not confidential information
• Customers independently sought you out

Active Solicitation vs. Passive Acceptance

This is the most critical distinction in customer non-solicitation cases:

Active solicitation (prohibited):

• Calling former customers to request their business
• Sending emails or mailers advertising your new services
• Visiting customers in person to pitch your new company
• Offering special incentives to switch

Passive acceptance (typically allowed):

• Customer contacts you first and asks to do business
• Customer independently decides to follow you to your new employer
• You accept business from customers who seek you out
• Responding to inbound inquiries

Example: A customer you served for years calls you at your new company and says, “I want to work with you, not your old company. Can you help me?” This is typically NOT a violation because the customer initiated contact.

The “Inevitable Disclosure” Problem

Some employers argue that you’ll inevitably use customer knowledge even if you don’t actively solicit. Texas courts generally reject this argument unless:

• You had access to highly confidential, non-public customer information
• The customer relationship was built primarily through company resources (not your personal reputation)
• There’s evidence you’re actually using confidential information

Bottom line: Working for a competitor and servicing customers who independently come to you is not solicitation, even if you have knowledge about those customers.

Employee Non-Solicitation: What’s Enforceable?

Employee non-solicitation agreements restrict your ability to recruit former colleagues:

What Constitutes Solicitation?

Clear violations (active recruitment):

• Calling former colleagues to offer them jobs
• Sending emails encouraging them to apply to your new company
• Offering signing bonuses or other incentives to join you
• Coordinating mass departures of employees

Typically not violations (passive acceptance):

• Former colleague sees your LinkedIn update about your new job and applies independently
• Employee contacts you asking about opportunities
• Hiring an employee who applied through normal channels without your involvement
• Accepting applications from former colleagues who seek you out

LinkedIn and Social Media Considerations

Social media creates gray areas in employee non-solicitation:

Generally safe:

• Updating your LinkedIn profile with your new employer
• Posting about your new role
• Accepting connection requests from former colleagues
• Responding to messages from colleagues asking about your new company

Risky behavior:

• Direct messaging former colleagues about open positions
• Posting job openings and tagging former colleagues
• Commenting on colleagues’ posts encouraging them to leave
• Using LinkedIn to systematically contact multiple former employees

Best practice: Let former employees come to you. Update your profile, but don’t actively recruit.

Legitimate Business Reasons for Employee Non-Solicitation

Courts enforce these agreements to protect:

Investment in employees: Training, development, specialized knowledge

Confidential information: Employees might have access to trade secrets or confidential business information

Team stability: Preventing mass raids that could cripple business operations

Competitive advantage: Protecting workforce from systematic poaching

How Non-Solicitation Agreements Work with Non-Competes

Many employment contracts include BOTH restrictions:

Common structure:

1. Non-compete agreement: “You cannot work for competitors for 2 years”
2. Non-solicitation agreement: “You cannot solicit our customers or employees for 2 years”

Why both?: The employer gets maximum protection:

• If the non-compete is voided as unreasonable, the non-solicitation might still be enforced
• If the non-compete is modified by the court, the non-solicitation provides additional protection
• They protect different interests (where you work vs. who you contact)

Strategy consideration: If you’re negotiating an employment contract, you might propose accepting a non-solicitation agreement in exchange for eliminating or reducing the non-compete. This allows you to work in your field while still protecting your employer’s legitimate interests.

Enforcement and Remedies

If you violate a non-solicitation agreement, your former employer can seek:

Injunctive Relief

The most common remedy is a court order (injunction) requiring you to:

• Stop soliciting customers or employees
• Return any confidential information
• Cease contact with specific individuals

Timeline: Injunctions can be issued quickly (sometimes within days), before a full trial.

Monetary Damages

The employer can sue for:

• Lost profits from customers who left
• Costs of recruiting and training replacement employees
• Harm to customer relationships
• Attorney’s fees (if the contract provides for them)

Evidence Matters

Employers typically prove solicitation violations through:

• Emails or text messages showing active outreach
• Customer testimony about how contact was initiated
• Employee testimony about recruitment activities
• Timing of customer defections or employee departures
• Social media messages and posts

Practical tip: Assume all digital communications could be discovered in litigation. Don’t send emails or messages that could be construed as active solicitation.

Strategies for Navigating Non-Solicitation Agreements

1. Understand What You Signed

Review the agreement carefully:

• Who is covered? (Which customers or employees?)
• How long does it last?
• What activities are prohibited?
• How is “solicitation” defined?

Many employees sign these agreements without reading them carefully and later find themselves in violation.

2. Document Customer-Initiated Contact

If customers contact you:

• Keep records of who initiated contact
• Note the date and method of initial contact
• Document that you didn’t solicit them
• Consider having the customer confirm they reached out independently

Example: Customer emails you asking for a quote. Save that email. If disputed later, you can prove the customer initiated contact.

3. Distinguish Active from Passive Conduct

Safe zone:

• Update your LinkedIn profile
• Respond to inbound inquiries
• Accept business from customers who seek you out
• Hire employees who apply independently

Danger zone:

• Calling customers to pitch your new services
• Emailing former colleagues about job openings
• Offering incentives to switch providers or employers
• Coordinating group departures

4. Be Careful with Confidential Information

Even if a customer contacts you independently, using confidential information to serve them could violate the agreement:

Don’t use:

• Confidential pricing information
• Customer preferences or buying history from your former employer
• Proprietary processes or methods
• Trade secrets

You can use:

• General knowledge and skills
• Public information about the customer
• Your personal relationships and reputation
• Industry best practices

5. Negotiate Before Signing

The best time to address non-solicitation concerns is BEFORE you sign:

Request modifications:

• Shorter time periods (1 year instead of 2)
• Narrower scope (only customers you personally served)
• Clear definition of “solicitation”
• Carve-outs for customers who initiate contact
• Limitations on which employees are covered

Many employers will negotiate because reasonable restrictions still protect their interests.

6. Consult an Attorney Before High-Risk Moves

Consider legal advice before:

• Accepting a job with a direct competitor
• Reaching out to any former customers or employees
• Responding to requests from former customers in a way that might violate the agreement
• Making LinkedIn posts that could be construed as recruitment

Related Topics

• Texas Employment Contracts – Comprehensive guide to employment contract issues in Texas
• Non-Compete Agreements – Understanding Texas non-compete restrictions and § 15.50 requirements
• At-Will Employment Texas – How at-will employment works in Texas
• Severance Agreements – What you’re agreeing to when you sign a severance agreement
• Arbitration Agreements Employment – How arbitration clauses impact your legal rights

Frequently Asked Questions

Can I accept business from former customers who contact me first?

Generally yes, as long as you didn’t solicit them. If the customer independently decides to work with you at your new employer, this is typically not considered solicitation. However, keep documentation showing the customer initiated contact, and avoid using confidential information from your former employer.

Does posting about my new job on LinkedIn violate a non-solicitation agreement?

Simply updating your LinkedIn profile and posting about your new position is typically not solicitation. However, directly messaging former colleagues about job openings, tagging them in posts about positions, or encouraging them to apply could be considered solicitation. Let them come to you.

How long do non-solicitation agreements last in Texas?

Most enforceable non-solicitation agreements in Texas last 1-2 years. Courts view this as reasonable time for the former employer to transition customer relationships and stabilize their workforce. Agreements lasting more than 2-3 years may be reduced by courts as unreasonable.

Can I hire a former colleague who applies to my company’s job posting?

This is a gray area. If the employee applied independently through your company’s normal hiring process without any solicitation from you, this is generally not a violation. However, if you encouraged them to apply, sent them the posting directly, or coordinated their application, this could be considered solicitation.

What’s the difference between non-solicitation and a non-compete?

A non-compete prevents you from working for competitors or in your field entirely. A non-solicitation allows you to work for competitors but prohibits you from actively soliciting customers or employees from your former employer. Non-solicitation agreements are narrower and often easier for employers to enforce.

Can my employer enforce a non-solicitation agreement if they fired me?

Yes. In Texas, non-solicitation agreements are generally enforceable regardless of who ended the employment relationship or the reason for termination. The fact that you were fired or laid off does not automatically void the agreement.

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Legal Disclaimer: This article provides general information about Texas non-solicitation agreements and should not be construed as legal advice. Non-solicitation law involves fact-specific analysis that depends on the specific terms of your agreement, the nature of your contacts, and the circumstances of your employment. If you’re facing a non-solicitation restriction or dispute, consult a qualified Texas employment attorney for advice specific to your situation.

References

• Texas Business & Commerce Code § 15.50
• Texas Uniform Trade Secrets Act (TUTSA)
• Texas common law on restrictive covenants