Nonsolicitation Agreement

A nonsolicitation agreement is a contractual restriction prohibiting a former employee from soliciting the employer's customers, employees, or both for a specified period after employment ends. Texas treats nonsolicitation agreements as a category of restraint on trade subject to the same statutory framework as noncompete agreements.

Two principal forms

Customer nonsolicitation: prohibits the former employee from soliciting business from customers of the former employer with whom the employee had material contact during employment. This is the more common and more readily enforced form.

Employee nonsolicitation (or "no-poach"): prohibits the former employee from recruiting or soliciting the former employer's other employees to leave their employment. Under Marsh USA, employee nonsolicitation provisions are subject to § 15.50, meaning they must be ancillary to an otherwise enforceable agreement and reasonable in scope.

Reasonableness factors

Customer nonsolicitation agreements are typically more readily enforced than full noncompete agreements because they impose a narrower restraint on the employee's ability to earn a living. Texas courts examine: (1) duration (typical: 1–2 years); (2) the customer scope (limited to customers the employee served or learned about during employment, not all customers of the employer); and (3) the activities prohibited (active solicitation versus accepting unsolicited business).

Companion article: Non-Competes in Texas

Practice guide: Texas Non-Compete Law