Clause primer
Non-solicitation of employees clause (commercial agreements and NDAs)
Restricts one or both parties from soliciting, and sometimes from hiring, the other party's employees for a defined period.
Legal information, not legal advice. What a clause does depends on its exact words, the rest of the agreement and the governing law.
Also called: employee non-solicit, no-hire clause, anti-poaching clause, non-solicitation of personnel. Where you find it: NDAs for acquisition and partnership discussions, services and consulting agreements, staffing and outsourcing contracts, joint ventures and business purchase agreements.
SAMPLE CLAUSE (INVENTED FOR THIS PRIMER)
For 12 months after the date of this Agreement, neither party will, directly or through others, solicit for employment any employee of the other party with whom it had contact, or of whom it became aware, in connection with the Purpose. This restriction does not prohibit (a) general solicitations, such as job postings or recruiter searches, not specifically directed at those employees, or (b) hiring any person who responds to a general solicitation, who contacts the hiring party on their own initiative, or whose employment with the other party ended at least six months earlier. Each party acknowledges that this Section is reasonably necessary to protect its legitimate business interests.
How it works
Duration and covered employees
The 12-month period and the "contact or awareness in connection with the Purpose" test keep the restriction tied to the relationship. A clause covering every employee of a large company is harder to comply with.
Solicit or hire
This sample restricts soliciting only. A no-hire clause, which bars employment even when the employee makes the first approach, is a broader restriction and draws more scrutiny. Check which verbs the clause uses ("solicit," "hire," "employ" or "engage"), since "engage" may also reach contractors.
General solicitation carve-out
The exclusions let ordinary recruiting continue and protect a party when an employee applies through a public posting or on their own. Without them, a hiring team may breach without knowing it.
Reasonableness acknowledgment
The acknowledgment supports enforceability but does not decide it. Courts look at the actual scope and purpose of the restriction in addition to the parties' own statement.
Why it is there
The clause protects a party that exposes its people to a counterparty, for example in due diligence, a services engagement or a joint project. The protection belongs to the employer and restricts the counterparty's conduct, while the employees themselves are not parties to it. Because it affects labor markets, it can draw attention under both state restrictive covenant law and antitrust law.
How it works with other clauses
- Confidentiality terms in the same NDA often define the "Purpose" and the contact that triggers the restriction.
- Term and survival provisions determine whether the non-solicit continues after the NDA or services agreement ends, and from what date the period runs.
- Remedies and injunctive relief clauses affect what the protected party can recover, since damages from a lost employee are hard to prove.
Negotiating it
Who it protects: The party whose employees are exposed to the counterparty, and often both parties in a mutual clause.
If it protects you
- Coverage of employees the counterparty met or learned about through the relationship, with key individuals named in a schedule if needed.
- A period tied to the length of the relationship plus a reasonable tail.
- Coverage of indirect solicitation through recruiters or affiliates.
If it runs against you
- Standard ask: solicit-only with no no-hire, limited to employees met through the relationship, for 12 months or less, with a general solicitation carve-out.
- Fallback: accept a no-hire only for a short list of named key employees, keeping the general solicitation and self-initiated contact carve-outs.
- Limit coverage to the party's own conduct, excluding affiliates and portfolio companies.
Escalate before accepting: A broad no-hire covering all employees of the counterparty and its affiliates, with no general solicitation carve-out and a long tail, should be escalated because of compliance difficulty and the enforceability and antitrust questions it raises.
What AI explanations get wrong
- Applying one state's rule to every agreement. Check: identify the governing law and where the affected employees work, and confirm current law there, since restrictive covenant law varies by state and has changed in recent years.
- Treating "solicit" and "hire" as interchangeable. Check: read the operative verbs and the carve-outs before describing what is prohibited.
- Ignoring antitrust risk in no-hire arrangements. Check: flag no-hire and no-poach terms between companies, particularly those not tied to a legitimate collaboration, for review by counsel familiar with antitrust in labor markets.
Where the law varies
Whether and how far a non-solicitation or no-hire clause is enforceable depends on the governing law, the state where affected employees work and the context of the agreement, and state approaches differ considerably. Antitrust law may also apply to agreements between companies not to recruit or hire each other's employees.
TOOLS
Need a primer like this for a clause in front of you? The Clause Primer Kit, included in All-access, produces one in this format inside the AI tool you already use, with checks built in. For reviewing whole agreements, see the Plugin Playbook: NDAs.