Non-Solicit vs Non-Compete: What Is the Difference, and Which One Is Worse?

A non-compete restricts where you can work

A non-compete clause prevents you from working for a competitor, starting a competing business, or sometimes working in your field at all, for a defined period after you leave your current job. Its purpose is to keep you from taking your knowledge and skills to someone in the same market. The clause typically specifies a duration (often six months to two years), a geographic scope (a city, a state, the whole country, sometimes worldwide), and a definition of "competitor" or "competing business" that determines what work is off-limits.

The economic effect can be sweeping. A senior salesperson with a one-year national non-compete in a narrow industry may have no employer they can legally work for during that year. Some non-competes are paired with "garden leave" provisions that compensate you during the restricted period, which mitigates the harm. Many are not — they simply bar you from your career for the period stated, without compensation. The clause’s ability to actually do that depends heavily on your state, which is where the differences from the non-solicit become important.

A non-solicit restricts who you can do business with

A non-solicitation clause prevents you from soliciting — actively reaching out to — your former employer’s clients, customers, prospects, or employees for a defined period after you leave. It does not directly stop you from working for a competitor; you can join the same industry, the same role, even the same competitor. But for the duration of the non-solicit, you cannot try to pull the old company’s business or its people to your new role. Non-solicits typically last six months to two years, often track the non-compete period in the same contract, and may cover different categories of contacts.

The premise is different from the non-compete. A non-compete tries to protect against you using your general knowledge against the company; a non-solicit tries to protect specific relationships — clients and colleagues — that the company has invested in building. That difference in premise is part of why non-solicits are easier to defend in court and harder to escape, even when the same contract’s non-compete is unenforceable.

Why non-solicits often survive where non-competes die

The legal landscape for non-competes has been shifting steadily against employers. California, North Dakota, Oklahoma, and Minnesota have made employee non-competes essentially void; many other states have layered in salary thresholds, notice requirements, or industry-specific restrictions; and the federal landscape has seen serious attempts at a national ban. The trend is toward narrowing non-competes, sometimes dramatically. A clause that was enforceable a decade ago may not be today.

Non-solicits have largely escaped this trend. Courts and legislatures treat them as less restrictive of competition — you can still earn a living in the field, just without the specific clients you served at your old job — and the protection of customer relationships is seen as a more legitimate employer interest than general market protection. So even California, which is famously hostile to non-competes, still permits narrowly drawn non-solicits in some circumstances, particularly for trade-secret protection. The result is that in many states, the non-solicit is the actual binding restriction in the contract, even though the non-compete grabs all the attention.

Customer non-solicit versus employee non-solicit

Non-solicits commonly cover two different things: customers/clients and other employees. A customer non-solicit prevents you from approaching the old company’s clients or prospects for a defined period. An employee non-solicit (sometimes called a "non-poach") prevents you from recruiting your old colleagues to your new employer. They are conceptually similar, but the underlying interests are slightly different — the customer non-solicit protects the company’s revenue base, while the employee non-solicit protects against you stripping out the team.

Both are increasingly common, and both are usually enforceable in most US states. Some contracts also include a non-solicit of vendors, suppliers, or other business contacts, which can be reasonable in some industries (such as recruiting or media buying) but overbroad in others. When you read a non-solicit clause, identify exactly which categories of people it covers and how each one is defined.

What "solicit" means — and what it does not

A subtle but important point: non-solicits generally restrict active solicitation, not passive interaction. If you leave your old job and an old client reaches out to you on their own initiative because they want to work with you in your new role, you are generally not "soliciting" them, and the clause typically does not bar that response. The line is whether you reached out or they did. Some non-solicit clauses try to extend to any business with old clients regardless of who initiated, but courts have generally been skeptical of such expansive reads, especially in states inclined to enforce restrictive covenants narrowly.

That said, the line in practice can be fuzzy. A LinkedIn announcement of your new role is probably fine; targeting your old client list with the announcement is closer to solicitation. Reaching out to a former colleague to grab coffee is fine; reaching out to recruit them is solicitation. The wording of the specific clause matters, and the cleaner the line in your behavior, the easier the defense if anything is questioned.

How they interact with confidentiality

Almost every employment contract pairs restrictive covenants with confidentiality obligations, and the three layers — non-compete, non-solicit, confidentiality — work together. Confidentiality protects the company’s actual information (customer lists, pricing data, internal processes), and that protection generally survives indefinitely and across state lines, regardless of how the other covenants fare. A non-compete and non-solicit add additional behavioral restrictions on top of that, with their own duration and geography.

Even in states where non-competes are void, confidentiality and a well-drawn non-solicit can effectively constrain you. You can take a job at a competitor (the non-compete is void), but you cannot use the old company’s customer list (confidentiality), and you cannot solicit those customers using the relationships you built (non-solicit). So the three layers create overlapping protections that, together, can have most of the practical effect of a non-compete without ever invoking one.

Duration and scope: what is enforceable

Even where non-solicits are generally enforceable, the specific terms have to be reasonable. Six months to one year is a duration courts commonly accept; two years gets more scrutiny; longer than two years draws skepticism. The scope of "clients" or "employees" covered also matters — a clause covering everyone the company has ever dealt with is broader than one covering only current customers with whom you had personal contact. Courts often modify or strike overbroad clauses, but you do not want to rely on that. A clause drafted reasonably from the start is far less likely to bite.

What this means for negotiation

When you read your employment offer, take all three layers seriously, even if you live in a state that voids non-competes. Reasonable, often successful negotiation asks include:

• Shorter duration on both non-compete and non-solicit — six to twelve months rather than two years.
• Narrowed definition of "competitor" — a short, named list rather than an entire industry.
• Narrowed definition of "client" — only customers with whom you had personal contact in your last year, not everyone in the company’s database.
• Geographic limit to where you actually worked, not the company’s entire footprint.
• A carve-out so the non-solicit does not apply if you are terminated without cause.
• Explicit confirmation that passive responses to former clients are not solicitation.
• No non-compete at all if you are in a state where one would not be enforceable anyway — getting a redundant restriction off your record is worth asking for.

When you should worry more about the non-solicit

If your role is heavily relationship-driven — sales, consulting, advisory work, recruiting, agency work, professional services — the non-solicit is often the clause that matters more than the non-compete. Your value at the next job will likely depend on the network you bring, and an overbroad non-solicit can effectively neutralize that for the restriction period. In those roles, spend your negotiating capital on narrowing the non-solicit (shorter, more specific, with carve-outs for inbound) even if the non-compete looks scarier on the page. The clause that will actually constrain your next role is the one to fight.

What to do if you receive a letter after leaving

If your former employer sends you (or your new employer) a letter alleging you have violated a non-solicit or non-compete, do not ignore it and do not panic. Read what they specifically claim — was it solicitation, or passive contact? Was it within the restricted period? Was the relationship covered by the clause? Many of these letters are aggressive opening positions rather than serious claims, and many resolve once you (or a quick lawyer) push back with the actual facts and the actual clause language. Documentation is everything: emails, the timeline of your interactions, who reached out first. Treat the letter as a real but not necessarily fatal problem, and engage a lawyer if the threats escalate or the stakes warrant it.

The bottom line

A non-compete restricts where you can work; a non-solicit restricts who you can do business with. The non-compete grabs the attention, but in many states it is the non-solicit that actually binds you — especially in relationship-driven roles where your value travels with you. Read both clauses in any employment contract, identify which is doing the real work in your situation, and negotiate them at the offer stage when your leverage is highest. If you want a fast read on what your offer’s restrictive covenants actually do — non-compete, non-solicit, confidentiality, and how they interact — ClauseAudit reviews the contract in about a minute, flags each restriction by severity, and gives you the specific language to push back on.