Customer non-solicit vs non-compete - what's the difference?

Counteroffer · Answers · non-compete Source: https://trycounteroffer.com/answers/customer-non-solicit-vs-non-compete

Short answer: A non-compete prohibits you from working for competitors or in competitive activity. A customer non-solicit prohibits you from soliciting your former employer's customers. Customer non-solicits are typically easier to enforce than full non-competes because they're narrower in scope, but California (post-2018 AMN Healthcare decision) voids both. In most states, customer non-solicits limited to customers you actually serviced for 12-18 months are enforceable; non-competes face heavier scrutiny.

What each restricts

Non-compete: Prohibits the former employee from working for competitors or engaging in competitive activity for a defined period. The restriction is on the employee's employment or business activity itself.

Typical scope: "Employee shall not, for 12 months following termination, engage in any business that competes with Company in [geographic area]."

This is broad. It can prevent the employee from working in their industry at all, regardless of whether they're using any of the former employer's customer relationships or proprietary information.

Customer non-solicit: Prohibits the former employee from soliciting business from the former employer's customers for a defined period. The restriction is on which customers the employee can pursue.

Typical scope: "Employee shall not, for 12 months following termination, solicit business from any customer of Company that Employee directly serviced in the 12 months preceding termination."

This is narrower. The employee can work for competitors but cannot pursue their former employer's specific customers.

Why customer non-solicits are typically easier to enforce

Courts treat customer non-solicits more favorably for several reasons:

The restriction is targeted at specific protectable interests (customer relationships built using employer resources)
The employee can still work in their industry
The scope is narrower and easier to define
The harm to the employee is less severe than a full non-compete
The employer's legitimate interest is clearer

In practice, well-drafted customer non-solicits (12-18 months, limited to customers the employee directly serviced) are enforced in most US jurisdictions.

State-by-state nuances

California: After AMN Healthcare v. Aya Healthcare Services (2018), customer non-solicits in California are void under § 16600 the same way non-competes are. This was a significant change; pre-2018 practice often assumed customer non-solicits were enforceable.

Most other states: Customer non-solicits enforceable under reasonableness review, generally easier to enforce than non-competes.

Massachusetts: The 2018 Noncompetition Agreement Act specifically excluded customer non-solicits from its coverage; they remain governed by prior common-law standards.

Texas, Florida, Georgia: All enforce customer non-solicits readily, with statutory or common-law support.

Salary-threshold states (WA, IL, CO, OR, DC): Customer non-solicits typically have lower thresholds than non-competes. In Illinois, the non-solicit threshold is $45,000 vs $75,000 for non-competes (2024 figures).

How to think about negotiating these in severance

If your severance agreement includes restrictive covenants:

Try to remove the non-compete entirely first. Especially if it's a new restriction added at severance.
Accept a customer non-solicit as a substitute. Narrower scope, easier for the company to accept, less restrictive on your future work.
Narrow the customer non-solicit further:
- Limit to customers you directly serviced (not all company customers)
- 12 months maximum duration
- Definition of "solicit" that excludes responding to inbound inquiries
- Exception for customers you had prior relationships with

Counter language for a narrowed customer non-solicit:

"Employee shall not, for 12 months following separation, directly initiate contact with any customer of Company that Employee directly serviced in the 12 months preceding separation, for the purpose of soliciting business that competes with Company's products or services. This provision does not prohibit Employee from responding to inbound contact initiated by such customers, working for customers Employee had a prior relationship with before joining Company, or providing services to customers that do not compete with Company."

This is much narrower than the typical broad customer non-solicit and significantly easier to operate under in your next role.

Employee non-solicits

Often confused with customer non-solicits, employee non-solicits (also called "no-raid" clauses) prohibit you from recruiting your former employer's employees to join you elsewhere.

Employee non-solicits are typically the easiest restrictive covenant to enforce because:

The restriction is narrow (just recruiting, not all employment activity)
Employee loyalty has clear legitimate interest justification
The harm to the employee is minimal (they can still pursue customers and competitive employment)

Standard scope: 12-24 months, limited to employees the departing employee worked with directly. Generally enforceable in most states.

What to do next

If you want a delivered analysis of all the restrictive covenants in your agreement (non-compete, customer non-solicit, employee non-solicit, confidentiality) with cited authority and recommended responses, we deliver one in 24 hours for $199. See Non-Compete Review.

Sources

AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., 28 Cal. App. 5th 923 (2018)
BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999) (customer non-solicit reasonableness)
820 ILCS 90 (Illinois thresholds)
Mass. G.L. c. 149 § 24L (Massachusetts excludes customer non-solicits from act)

Get your contract reviewed

If you want a delivered review of your specific document with cited authority and counter language, see https://trycounteroffer.com/non-compete.

Last updated: Sun May 31 2026 00:00:00 GMT+0000 (Coordinated Universal Time)

Counteroffer is a contract analysis service, not a law firm. This page is informational, not legal advice.