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    Employment Law Divison

    Non-solicitation agreements in California – Are they enforceable?

    Are Non-solicitation Agreements Enforceable in California?

    Non-solicitation provisions in employment contracts are usually unenforceable under California Business and Professions Code 16600. This means your former employer generally cannot stop you from hiring current employees or soliciting current customers, though courts have made some exceptions.

    Graphic that shows exceptions that may make non-solicitation agreements lawful in California, such as if the agreement involves the sale of a business or the dissolution of a partnership

    Here are three key things to know:

    1. Non-solicitation agreements may be lawful if they protect trade secrets or pose “no negative impact” on business.
    2. Non-solicitation agreements are different from non-compete agreements, where employees agree not to work at a competing business after termination.
    3. Like non-solicitation agreements, non-compete agreements are largely unenforceable.

    In this article, our California employment attorneys answer the following frequently-asked-questions re. non-solicitation agreements. Also listen to our informative podcast:


    1. What is a non-solicitation agreement?

    A non-solicitation agreement (also called a “non-interference agreement”) is where you agree – if you later leave the company – not to either:

    • hire or offer employment to the company’s other employees and/or
    • solicit the company’s customers.

    In short, non-solicitation agreements prohibit you from poaching talent and/or customers from your former employer.

    Non-solicitation clauses are typically found in employment contracts you must sign in order to work at the company.

    Employer discussing employment contract with a new hire. They are sitting across from each other at the employer's desk.

    Non-solicitation clauses in employment contracts are usually void in California.

    2. Are non-solicitation agreements legal in California?

    In general, California law prohibits employee non-solicitation provisions. This is because public policy is to minimize hiring restrictions.1

    However, there have been instances where California state courts upheld narrowly-tailored employee non-solicitation agreements.

    “No Negative Impact”

    In one court ruling involving a breach of contract for employment, the judges said that the non-solicitation provision was enforceable because the plaintiff’s employees were not hindered from getting work with the defendant or reaching out to the defendant. The only restriction was that the defendant could not contact the plaintiff’s employees first.

    In sum, since the non-solicitation provision had “no overall negative impact on trade or business,” the provision was enforceable.

    So it would appear that the broader and more restrictive an employment agreement’s non-solicitation provision, the more likely it is unenforceable under California state law. Though if the non-solicitation agreement has a short reach and poses little restriction on employee mobility, then courts may be more inclined to let such agreements stand.2

    Trade Secret Exception

    California courts do enforce non-solicitation agreements when they are necessary to protect the company’s trade secrets and other confidential information. The purpose of the “trade secret exception” is to protect the company from unfair competition by former employees who wish to exploit the company’s intellectual property for their own benefit.3

    Sale of the Business

    Non-solicitation agreement can be enforceable if they are ancillary to an owner selling all their shares or interest of a corporation, partnership, or limited liability corporation. In practice, these solicitation agreements are part of a global business deal, and courts interpret such non-solicitation agreements based on the entirety of the transaction.4

    Dissolution of Partnerships

    Non-solicitation agreements can be enforceable in cases where partners agree not to solicit its partners or clients in the event the partnership dissolves.5

    Courtroom with the judge at the bench presiding over a trial, and there are people watching at the rear of the room

    Most cases involving non-solicitation agreements are settled out of court.

    3. What if there is a lawsuit?

    If your former employer in California brings a non-solicitation lawsuit against you, they will generally claim some or all of the following grounds:

    • breach of contract,
    • breach of fiduciary duty,
    • interference with contractual relations,
    • interference with prospective economic advantage,
    • unfair competition, and/or
    • misappropriation of trade secrets.

    You could then file a motion to dismiss, claiming that your former employer failed to state a claim for relief. Failing that, you can then file a motion for summary judgment (asking the court to decide the case based on the undisputed facts of the case).

    If that does not work, then the case would go to trial unless you agree to settle out of court. (Note that in some cases, disputes are settled through arbitration instead of the courts.)

    Former employers typically seek two types of relief:

    1. Injunctive relief, such as a court order for you not to hire their employees or solicit their clients; and/or
    2. Compensation for any money your actions allegedly cost them.

    Any case decided at the state district court level could be appealed to the appellate court and finally to the California Supreme Court. (Certain state supreme court cases can be appealed to the U.S. Supreme Court, but this is rare.)

    Since these cases can drag on for years in the courts, most of the time they resolve out-of-court.6

    Employee photographing employer documents in a binder with his mobile phone. In front of him is a shelf full of similar binders.

    Non-solicitation clauses can be enforced in California to protect trade secrets.

    4. How are non-compete agreements different?

    Non-competition agreements are clauses in employment contracts that prohibit you – if you later leave the company – from then working at a competing business for a certain period of months or years.

    So whereas non-solicitation agreements restrict you from hiring your former employer’s current employees and/or soliciting their clients, a non-compete agreement restricts you from working at a competing company.

    Similar to non-solicitation agreements, non-compete agreements are usually unenforceable in California because they hinder you from practicing your chosen profession.7

    Additional Resources

    For more in-depth information, refer to these scholarly articles:

    Legal References

    1. California Business and Professions Code section 16600 (“Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.“). AMN Healthcare, Inc. v. Aya Healthcare Services (California Court of Appeal, Fourth Appellate District, Division One, 2018) 28 Cal. App. 5th 923 (“The undisputed evidence thus shows section 3.2 of the CNDA restricted individual defendants’ [nurse recruiters’] ability to engage in their “profession, trade, or business.”). Edwards v. Arthur Andersen LLP (California Supreme Court, 2008) 44 Cal. 4th 937 (“California courts have not embraced the Ninth Circuit’s narrow-restraint exception…Section 16600 is unambiguous, and if the Legislature intended the statute to apply only to restraints that were unreasonable or overbroad, it could have included language to that effect.”). See also Barker v. Insight Global, LLC (United States District Court for the Northern District of California, San Jose Division, 2019) 2019 U.S. Dist. LEXIS 6523 (federal court decision that invalidated employee non-solicitation provisions in cases where the former employees did not recruit talent as their profession.). See also the following unpublished decisions: Moss Brothers Auto Group v. Shaver (Cal.App. 2022) No. G060768 (“We reject the contention put forward by Moss Bros. that a reasonableness standard applies to our review and interpretation of the nonsolicitation clause at issue here in the employment context.”); Frazer, LLP v. Rendon (Cal.App. 2023) No. G061846 (“In any event, even if we were to analyze the employee nonsolicitation clause under section 16602, we would find it unenforceable because it also does not include a geographic limitation as required under that statute.”). See also California Business and Professions Code  section 16600.5 (“(An employer shall not enter into a contract with an employee or prospective employee that includes a provision that is void under this chapter…An employee, former employee, or prospective employee may bring a private action to enforce this chapter for injunctive relief or the recovery of actual damages, or both [and] recover reasonable attorney’s fees and costs.”)
    2. Loral Corp. v. Moyes (California Appellate Court, Sixth Appellate District, 1985) 174 Cal. App. 3d 268 (“The potential impact on trade must be considered before invalidating a noninterference agreement, a contract must be construed to be lawful if possible, and the restriction only slightly affected plaintiff’s employees, who were not hampered from seeking employment with defendant’s new employer nor from contacting defendant. Since the noninterference agreement had no overall negative impact on trade or business, it was not void on its face under § 16600.”)
    3. Moss, Adams & Co. v. Shilling (Court of Appeal of California, First Appellate District, Division Five, 1986) 179 Cal. App. 3d 124 (“Antisolicitation covenants are void as unlawful business restraints except where their enforcement is necessary to protect trade secrets.”). Edwards v. Arthur Andersen LLP (California Supreme Court, 2008) 44 Cal. 4th 937 (invalidated customer non-solicitation provisions under BP 16600). Dowell v. Biosense Webster (Cal.App. 2009) 179 Cal.App.4th 564. (“The court also found that Biosense’s common law trade secret defense failed as a matter of law because the restrictive clauses were not narrowly tailored or carefully limited to the protection of trade secrets and that, in any event, there was no evidence that Biosense’s customer list is a trade secret because “it appears that the customers for the products at issue ( e.g., physicians [and] hospitals) are easily identified from any number of publicly available directories and resources.””).
    4. See BP 16601. Blue Mountain Enterprises, LLC v. Owen (Court of Appeal of California, First Appellate District, Division One, 2022) 74 Cal. App. 5th 537.
    5. See BP 16602. See also BP 16602.5.
    6. See also Barker v. Insight Global, LLC (N.D. Cal. 2019) Case No. 16-cv-07186-BLF (“California law is properly interpreted post-Edwards to invalidate employee nonsolicitation provisions.”); WeRide Corp. v. Kun Huang (N.D. Cal. 2019) 379 F. Supp. 3d 834 (“The Court finds the reasoning of Barker and AMN … to be persuasive.”); Hamilton v. Juul Labs, Inc. (N.D. Cal. 2020) Case No. 20-cv-03710-EMC; Parsable, Inc. v. Landreth (N.D. Cal. 2022) 3:22-cv-01741; Race Winning Brands, Inc. v. Gearhart (C.D. Cal. 2023) SACV 22-01446-FWS (DFMx).
    7. See Edwards v. Arthur Andersen (“We hold that the noncompetition agreement here is invalid under section 16600, and we reject the narrow-restraint exception urged by Andersen. Noncompetition agreements are invalid under section 16600 in California, even if narrowly drawn, unless they fall within the applicable statutory exceptions of section 16601, 16602, or 16602.5“). See International Business Machines Corp. v. Bajorek (9th Cir. 1999) 191 F.3d 1033 (“It is one thing to tell a man that if he wants his pension, he cannot ever work in his trade again, as in Muggill, and quite another to tell him that if he wants a million dollars from his stock options, he has to refrain from going to work for a competitor for six months. Because of the limited scope of the restriction, we are bound to hold, under Campbell, General Commercial Packaging, and Smith, that the covenant did not violate section 16600.”). General Commercial Packaging, Inc. v. TPS Package Engineering, Inc. (9th Cir., 1997) 114 F.3d 888 (“Apart from Disney, TPS was not barred from soliciting work from any firm with which it had a prior relationship. The contract thus only limits TPS’s access to a narrow segment of the packing and shipping market.”). AB 1076 (2023). SB 699 (2023). See also FTC Announces Rule Banning Noncompetes, Federal Trade Commission, April 23, 2024.

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