Introduction
Many employees are familiar with the non-competition clause, but the non-solicitation clause often receives less attention, wrongly so. After the end of employment, this clause can have major consequences for the employee's freedom to maintain business contacts. This blog explains what a non-solicitation clause entails, when it is legally valid, and what the risks are if it is breached.
What is a non-solicitation clause?
A non-solicitation clause is a provision in an employment contract stipulating that after leaving employment, an employee may not maintain contact with relations of the former employer. These are customers, suppliers, clients, or other business contacts that the employee got to know during employment.
The purpose of the clause is to protect the employer's business network. By preventing employees from "taking" relationships with a competitor or as self-employed workers, the ex-employer's position in the market is protected. Usually the prohibition is for a defined period, such as six or 12 months, and often includes a geographic or business delineation.
When is a non-solicitation clause valid?
Like a non-competition clause, a non-solicitation clause must meet certain legal requirements. For temporary employment contracts, a non-solicitation clause is, in principle, invalid unless the employer can prove that there are important business interests involved. Moreover, this must be specifically justified in writing in the clause itself.
With employment contracts for an indefinite period of time, a non-solicitation clause is allowed, provided the clause is clearly, specifically and not unreasonably formulated. It is important that:
- the group of relationships is described in sufficiently concrete terms;
- the prohibition is limited in time and scope;
- the wording is understandable and not too general.
Judges test strictly and can nullify all or part of the clause if it is drafted too broadly or unclearly.
Note: LinkedIn connections may also be prohibited
A non-solicitation clause can reach further than many people think. There have been rulings in which sending a connection request via LinkedIn to a former customer was considered a violation of the non-solicitation clause. Even if no substantive recruiting message is sent, such a contact may be sufficient for a violation.
In contrast, a general announcement on social media, for example about starting your own business, may be permissible under circumstances, provided it is not addressed to relations of the previous employer. The context and wording are decisive in such situations.
What are the consequences for violation?
Breaching a non-solicitation clause can have major financial consequences. Most employment contracts attach a penalty clause to the clause. This means that for every violation, an immediately payable fine is due. Sometimes this is a one-time amount per violation, but it can also be a daily fine as long as the contact continues.
In addition, the (former) employer may claim damages or initiate legal proceedings to enforce compliance. It is therefore essential to seek legal advice in advance when in doubt about what is or is not permitted under the non-solicitation clause.
Conclusion
A non-solicitation clause can significantly limit an employee's freedom after leaving employment, especially when it comes to customer contacts or the use of social media. The validity and enforceability of the clause depend heavily on the wording, the type of employment contract and the substantiation of the employer's interest. It is therefore important for both employers and employees to take the non-solicitation clause seriously and carefully formulate it or have it reviewed.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about the non-solicitation clause. Please feel free to contact us .
April 2025
