Non-compete, customer non-solicit, no-poach and NDA — four clauses people treat as one

Four clauses, four different restraints

The restrictive-covenants section usually runs to a page and a half and is drafted as a single block. Pull it apart and there are four independent promises, each with its own subject matter and its own failure mode.

The practical consequence is that the four clauses are not interchangeable protections. A non-compete keeps a competitor from hiring you at all. A customer non-solicit lets them hire you and stops you calling your old accounts. Those are very different asks, and they are worth different amounts to the employer — which is the basis of nearly every negotiation over this section.

Why non-solicits survive where non-competes do not

A court asks two questions of any restraint: is there a legitimate interest to protect, and is the restraint no wider than that interest requires. A non-compete struggles on the second. It removes a person from part of the labour market entirely, including from work that has nothing to do with the employer's customers or secrets. A customer non-solicit is aimed directly at the thing the employer actually paid to build — the relationships — and leaves the rest of the market open.

That distinction has been written into statute. Where states have restricted or banned non-competes, the legislation frequently says in terms that it is not intended to reach non-solicitation, confidentiality or trade-secret covenants. The federal picture points the same way: the FTC's 2024 non-compete rule never took effect, the agency abandoned its appeal in September 2025, and the rule was removed from the Code of Federal Regulations in February 2026. The current position, and the state-by-state map, is covered in are non-competes enforceable in 2026.

What "solicit" actually means, and what it does not

This is the most commonly misunderstood word in employment contracts, and the misunderstanding runs in the employee's favour. Courts read "solicit" as requiring a proactive act — a request, an approach, an effort to entice. It is not a prohibition on being available.

The drafting response is to stop relying on the word. Read the verbs in your own clause. "Solicit" and "induce" restrain your conduct. "Accept", "service", "do business with" or "provide services to" restrain the customer's choice as well, and convert the clause into something that behaves like a non-compete over a defined slice of the market. Some courts test it as one and apply the stricter standard accordingly.

The employee no-poach clause has an antitrust problem the others do not

Two arrangements share the name "no-poach" and are treated completely differently, and conflating them is expensive in both directions.

• In your employment contract. A promise by you not to recruit your former colleagues is a vertical restraint, ancillary to a legitimate employment relationship. It is judged as a contract term, on ordinary reasonableness, and is enforceable in most states.
• Between two employers. An agreement between competing companies not to hire or solicit each other's staff is horizontal. Where it is "naked" — with no legitimate collaboration it is ancillary to — the DOJ and FTC have since 2016 treated it as per se illegal and prosecutable as a crime.

The criminal track was slow to produce results and is no longer theoretical: in April 2025 a jury convicted a home-health executive in United States v. Lopez in Nevada, the Antitrust Division's first labour-market conviction at trial. That case concerned wage-fixing rather than no-poach, but it removed the assumption that these charges could not be won. The FTC's current strategic plan lists no-poach, non-solicitation, no-hire, non-compete and wage-fixing agreements together as enforcement targets.

Whether a court will fix an over-broad clause, or bin it

An over-broad restrictive covenant does not have one consequence. It has three, depending on the state, and this is the single fact that most changes how you should read the clause in front of you.

Blue-pencilling is a mechanical exercise: the court may delete offending words, but only if what survives reads as an enforceable clause on its own. It cannot add or change words. Reformation goes further and lets the court rewrite the term to what would have been reasonable. A "purple pencil" variant conditions that rewriting on the drafter having acted in good faith — reform for the employer who over-reached honestly, red-pencil for the one who did not.

For a departing employee this is the first thing to establish, ahead of duration and geography. In a reformation state, arguing that a five-year restriction is unreasonable wins you a two-year restriction. In a red-pencil state, the same argument may win you nothing at all to comply with. The governing-law clause therefore matters as much as the covenant, and several states now legislate to override a choice of another state's law for workers based locally.

The clause nobody negotiates is the one that lasts longest

Confidentiality survives everywhere. It has no geography, and for genuine trade secrets no expiry. It is also the clause that does most of the work an employer actually needs done, which is why a tight non-disclosure agreement plus a twelve-month customer non-solicit is a more reliable package than a broad non-compete a court may refuse to enforce at all.

The limit is that not everything an employer calls confidential is. General skill and knowledge you acquired doing the job belongs to you, and a confidentiality clause drafted so widely that it captures your own expertise has been treated by some courts as a disguised non-compete and tested as one. What counts as a trade secret sets out where that line sits.

Reading the section before you sign it

Ask which of the four clauses is actually doing the work. If the employer's concern is your client relationships, a narrow customer non-solicit gives them that and costs you almost nothing; agreeing to it is often the fastest way to get the non-compete cut. If the concern is a genuinely secret process, the confidentiality clause already covers it and the non-compete is redundant. The negotiation goes better when it is conducted clause by clause rather than over the block.

On the way out, do the reverse. Read the four separately, work out which one your new job actually touches, and check the governing law before you resign rather than after the letter arrives. The covenant most people worry about is usually not the one that would be enforced against them — and the one that would be is generally the one they never read.