Non-Solicitation Clause
Definition
Non-Solicitation Clause
A non-solicitation clause stops one party to an outsourcing contract from recruiting or approaching the other’s employees for a stated period of time. It restrains hiring, not competing — which is what separates it from a non-compete obligation entirely.
The risk it addresses is real on both sides. Buyers meet capable offshore staff and think about hiring them; providers meet buyer-side managers and do the same.
Coverage is narrower than most people assume — a well-drafted clause reaches people who actually worked on the account, not everyone employed by either organisation.
Enforceability varies sharply by jurisdiction. Some legal systems treat broad restraints on employment as void, so the clause must be sized to what local law will uphold.
Key takeaways
- The clause restricts recruiting the other party’s staff, not competing for their customers.
- Scope should be limited to people who worked on the account, with a 6 to 12 month tail.
- Buy-out fees are a common and more enforceable alternative to a flat prohibition.
- General advertising is normally carved out, because it is not solicitation.
How it works
Four variables define the clause: who is covered, what conduct is restricted, how long it runs after the contract ends, and whether a payment can release the restriction. Each of them is negotiable.
The narrower the clause, the more likely it holds. A restriction limited to named account staff for 12 months after exit survives scrutiny far better than a blanket ban on hiring anyone.
| Variable | Buyer-friendly | Provider-friendly |
|---|---|---|
| Covered people | Those who worked on the account | Any employee of either party |
| Restricted act | Active solicitation only | Solicitation and employment |
| Duration | 6 months after exit | 24 months after exit |
| Advertising carve-out | Express and broad | Narrow or absent |
| Release mechanism | Fee equal to 3 to 6 months’ salary | No release available |
The release row is the pragmatic answer — a buy-out fee compensates the provider for recruitment and training cost while letting the individual take a job they want.
Employment law can override the whole discussion. Where a service transfers with the people attached, UK regulations provide that “a relevant transfer shall not operate so as to terminate the contract of employment” of the staff concerned.
Public procurement points the same way. Supplier evaluation is expected to focus on the bidder’s own “skills, efficiency, experience and reliability” rather than on who may later poach whom.
Examples
Non-solicitation disputes are common and litigated rarely, because both sides usually prefer a commercial answer. The four cases below show how they resolve in practice.
A buyer wants to hire an offshore team lead directly at the end of a project. The staff leasing contract allows it on payment of a release fee, and the transfer completes in weeks.
A provider objects when three account staff apply to a buyer’s public job advertisement. The advertising carve-out applies, so there is no breach and no claim.
A buyer in a jurisdiction that voids broad employment restraints discovers the clause is unenforceable. The parties replace it with a training-cost recovery term that does hold.
A provider loses two offshore staffing supervisors to a competitor introduced by the buyer. The clause did not cover third parties, so nothing is recoverable.
Related terms
Several clauses restrict what people and information may move between the parties. The entries below separate restrictions on hiring from restrictions on knowledge and on competition.
- Confidentiality clause: restricts information leaving, not people.
- Non-disclosure agreement: the pre-contract instrument that often carries the first non-solicitation term.
- Dedicated team pricing: the model where buyers meet the individuals, so the clause matters most.
- Seat leasing: supplies space rather than people, and usually needs no such restriction.
- Labor arbitrage: the wage gap that makes direct hiring tempting for buyers in the first place.
FAQ
What counts as solicitation?
Approaching an individual directly or through a recruiter to encourage them to leave. Responding to an application the person initiated is normally not solicitation.
Are general job advertisements allowed?
Usually yes, where the carve-out is express. Advertising to the market at large is not targeting a specific person and is treated differently.
How long should the clause last?
Six to 12 months after the contract ends covers most commercial situations. Longer restrictions attract scrutiny and are struck down in several jurisdictions.
Is a buy-out fee enforceable?
More often than a flat prohibition, because it compensates rather than restrains. Fees commonly equate to three to six months of the person’s salary.
Does it stop an employee resigning?
No. The clause binds the contracting parties, not their staff. An individual is free to resign and apply anywhere unless separately bound.
How does this differ from a non-compete clause?
Non-solicitation restricts hiring the other side’s people. A non-compete restricts serving the other side’s market or customers, which is a much broader restraint.
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