Non-solicitation clauses for recruiters: four kinds, and what holds up

Recruiting agencies run into non-solicitation clauses in four different directions at once: a client agreement that stops the client from poaching submitted candidates, a candidate's own agreement from a prior employer that follows them into the new role, the agency's own agreement not to recruit a client's staff, and an employment agreement with the agency's own recruiters restricting who they can contact if they leave. California Business and Professions Code § 16600 voids most restraints on a lawful profession, trade or business, which reaches employee non-solicits particularly hard; other states weigh them under a reasonableness test instead of voiding them outright. Which rule applies depends on which of the four clauses you are looking at and which state's law governs it.

This page is about the agency's and the client's own non-solicitation clauses. For what to ask a candidate about a restrictive covenant they already have with a previous employer, see non-compete questions for candidates.

The short answer

If you are drafting or signing a non-solicitation clause that touches California, whether the person or company being restrained is in California, assume it is void unless it fits a narrow statutory exception, and do not rely on choosing another state's law in the contract to fix that. If neither party nor the restrained activity touches California, most other states will enforce a non-solicit that is reasonable in scope, duration and the interest it protects, though the specific test varies by state and this page does not survey them all.

Four non-solicitation clauses, and who binds whom

California Business and Professions Code § 16600: voids most of them

§ 16600 states that "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void," except as provided elsewhere in the chapter. The California Supreme Court held in Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937 (2008) that the statute admits no general "narrow restraint" exception. The Court of Appeal applied that rule to a staffing dispute in AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018): recruiters who left one travel-nurse staffing company for a competitor had signed agreements not to solicit their former employer's own employees, and the court held that clause void under § 16600 because it effectively restrained the recruiters' ability to do their job in a business built on relationships with people they had worked with. Employee non-solicits, meaning a clause stopping a former recruiter from recruiting their former colleagues or clients, sit on the same footing: they are almost never enforceable in California, even when the employer can point to a legitimate business reason for wanting one.

Section 16600.5: out-of-state agreements, and a notice deadline that already passed

§ 16600.5 provides that a contract void under the chapter is unenforceable "regardless of where and when the contract was signed," and that an employer cannot attempt to enforce a void contract against an employee, former employee or prospective employee, whether or not the contract was signed and the employment was maintained outside California. A person subject to a void contract can sue for injunctive relief, actual damages, or both, plus attorneys' fees. A related section, § 16600.1, required employers to notify current employees and certain former employees, in an individualized written notice to their last known address and email, that a noncompete clause covering them was void, by February 14, 2024. That deadline has passed; an agency that has not sent the required notice, or that is still using an out-of-state template non-solicit against California-based recruiters or candidates, is worth reviewing against both sections now rather than waiting for a dispute.

What's still standing in California

§ 16600 does not reach every restriction. The statute's own exceptions, including § 16601, permit a reasonable non-compete tied to the sale of a business, a partnership dissolution, or an LLC dissolution, where the seller agrees not to compete within the area the business operated, for as long as the buyer carries on a like business there. Separately, an agreement protecting genuine trade secrets, such as a confidentiality clause covering a client list built with real proprietary work, can be enforceable through trade secret law even where a parallel non-solicit clause covering the same relationships is void. The distinction recruiting agencies most often miss is between protecting confidential information, which trade secret law can support, and restraining a person from working with people they know, which § 16600 generally does not allow regardless of how the clause is labeled.

Outside California: reasonableness, not automatic voidance

Most other states evaluate a non-solicitation clause under a reasonableness standard rather than voiding it outright: a legitimate business interest, a duration and scope no broader than necessary to protect it, and consideration given in exchange for the promise are common factors courts weigh. Exactly how each state applies that test, and which states have moved toward California's stricter approach, changes over time and is outside the scope of this page; check your state's current law, and the law of any state where the restrained party works, before relying on a template non-solicit clause written for a different jurisdiction.

Drafting clauses more likely to hold up

• Write the clause to protect a specific interest, such as client relationships the company invested in building, rather than a blanket restriction on working with anyone the person met on the job.
• Keep the duration short and stated, commonly a defined number of months after departure, rather than open-ended.
• Limit the scope to clients or candidates the person actually worked with or had access to information about, not the company's entire book of business.
• Separate the non-solicit from a confidentiality clause protecting genuine trade secrets, so the confidentiality obligation can stand even where a court finds the non-solicit unenforceable.
• Confirm which state's law the clause is meant to operate under, and check that state's current position rather than assuming last year's summary still holds.
• For clauses touching California specifically, assume voidance rather than trying to draft around § 16600; use confidentiality and trade secret protection instead.

A narrow, example client non-circumvention clause, for a state where non-solicits are evaluated for reasonableness rather than voided outright. This is a starting point to adapt with counsel, not finished contract language:

Client agrees that for a period of [12] months after [Agency] first introduces
Client to a candidate, Client will not hire that candidate directly, or through
another staffing or recruiting firm, without paying [Agency] the placement fee
set out in Section [X], unless [Agency] agrees in writing to waive the fee for
that placement.

This clause applies only to candidates [Agency] introduced in writing during
the term of this agreement, and expires [12] months after the introduction or
[6] months after this agreement ends, whichever is later.

Note what the example leaves out on purpose: it does not attempt to stop the client from hiring anyone at all, only from bypassing the fee on a specific introduced candidate, and it is bounded by both a candidate-specific scope and a fixed duration. A client non-circumvention clause written this narrowly is far more likely to be enforced, in states that apply a reasonableness test, than a blanket clause telling a client it cannot hire from a whole category of people the agency works with.

A clause checklist before you sign or send one

• Identify which of the four clause types you are dealing with, and who it restrains.
• Confirm which state's law governs, and whether the restrained party works in or is based in California.
• If California is involved, review the clause against §§ 16600 and 16600.5 rather than assuming the contract's own choice-of-law clause settles it.
• Confirm your agency sent the February 14, 2024 notice under § 16600.1 if any current or former employee since January 1, 2022 had a noncompete or overbroad non-solicit in their agreement.
• For a client non-circumvention clause, make sure the placement fee trigger and the clause work together; see the placement fee agreement template for the fee side.
• For a candidate's existing obligation to a prior employer, ask the questions in non-compete questions for candidates before submitting them to a competing client.
• Put a reminder on your calendar to re-check this page and the underlying statutes at least once a year; restrictive covenant law has moved quickly in several states in recent years, and a clause written to last-year's rule can be out of date before a dispute ever happens.