A friend of mine signed an NDA for what was supposed to be a casual partnership conversation between his startup and a much larger company. The conversation went nowhere. The companies never worked together. He forgot about the NDA entirely. Two years later, he hired a developer who used to work at that larger company. Within a week, he got a letter from their legal department citing the NDA. Not for confidentiality — he hadn't shared any secrets. For the non-solicit clause buried on page four. He'd never even noticed it was there. And technically, he was in violation.
What a Non-solicit Looks Like Inside an NDA
The language varies, but it usually goes something like: "Receiving Party shall not, for a period of two years following the disclosure of Confidential Information, directly or indirectly solicit, hire, or engage any employee, contractor, or customer of the Disclosing Party." Read that again. This is not about confidentiality. This has nothing to do with protecting secrets. It's a hiring restriction — a lightweight non-compete — that limits who you can work with, entirely separate from anything you learned during the engagement. The problem is that it's bundled into a document you think is just about secrecy. You're scanning for "don't share our trade secrets" and your eyes glaze over the part about not hiring anyone. But the obligations are separate, and a breach of the non-solicit is just as actionable as a breach of confidentiality.
Why It's a Problem
Confidentiality obligations are about information. Don't share what you learned, don't use it for your own benefit, don't publish it. That makes sense in the context of an NDA. Non-solicits are about people and business relationships. They limit who you can hire, who you can work with, who you can sell to. Those are competitive restrictions — the kind of thing that should be in a separate agreement, negotiated explicitly, and compensated if they're significant. Bundling them lets the other side claim a "confidentiality breach" when someone you hired happens to have worked for them three years ago. The real complaint isn't about secrets. It's about competition. But the NDA gives them a legal hook because the non-solicit was in the same document.
How to Negotiate It Out
Option one: delete it entirely. This is the cleanest approach and the easiest to defend. "This is a confidentiality agreement. The non-solicit is about competition, not secrecy. Let's address that separately if needed." Option two: narrow the scope. If they insist on keeping it, limit it to people you actually met or worked with during the engagement — not the entire employee base of a company with thousands of people. And shorten the duration: 6 months is reasonable, 12 months is aggressive, anything longer is excessive for a non-solicit that arose from a casual NDA. Option three: make it mutual. If you're restricted from hiring their people, they should be restricted from hiring yours. Fairness often gets these clauses softened or removed entirely.
Are Non-solicits Even Enforceable?
Sometimes. It depends on your state, the scope, and whether the relationship justifies the restriction. California tends not to enforce them. New York often does. Most other states are somewhere in between. But enforceability is the wrong question. The right question is: do you want to receive a threatening letter from a lawyer two years from now over a clause you never knew was in the document? Even if you'd ultimately win in court, the cost of getting there is the punishment. The clause works by making you afraid to fight it.
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Decode My LeaseFrequently asked questions
What if I already signed one?
Don't panic. Non-solicits are among the most frequently challenged restrictions because they're often overbroad. If you're in a situation where one might apply, consult an employment attorney before taking any action. A quick review is cheaper than litigation.