Non-solicitation clauses are almost never enforceable in California. Business and Professions Code Section 16600 voids any contract that restrains someone from engaging in a lawful profession, trade, or business, and California courts apply that rule to both customer and employee non-solicitation clauses in employment agreements. Narrow exceptions exist for the sale of a business or the dissolution of a partnership or LLC, but they don’t reach ordinary employment. And since January 1, 2024, workers have an explicit right to sue employers who try to enforce these void clauses.
Why These Clauses Are Void
Section 16600 is short and unforgiving. It voids any contract that restrains a person from engaging in a lawful profession, trade, or business, and it directs courts to read that prohibition broadly.1California Legislative Information. California Business and Professions Code 16600 There is no reasonableness test. There is no balancing of employer interests against employee mobility. If a clause restricts your ability to work, compete, or do business, it’s void unless it fits one of three narrow statutory exceptions.
The California Supreme Court closed off attempts to soften that rule in Edwards v. Arthur Andersen LLP (2008), holding that non-competition agreements are invalid under Section 16600 even when narrowly drawn, unless they fall within Sections 16601, 16602, or 16602.5. Non-solicitation clauses in employment contracts get the same treatment. Section 16600 also reaches beyond the parties who signed the contract; a third party restrained by someone else’s agreement can challenge it too.1California Legislative Information. California Business and Professions Code 16600
Clauses Barring Contact With Former Clients
A clause that prevents you from contacting clients you worked with at a former employer is generally void. Blocking a former employee from reaching out to customers they previously served restricts their ability to practice their profession, which is exactly what Section 16600 prohibits.1California Legislative Information. California Business and Professions Code 16600 The fact that you built relationships with certain clients while employed doesn’t give your former employer a legal lock on those relationships.
Employers sometimes try to frame customer non-solicitation clauses as protecting “confidential” information rather than restricting competition. A California appellate court rejected that move in AMN Healthcare v. Aya Healthcare, holding that Section 16600 bars an employer from restraining an employee from practicing their profession even if the employee uses information that is confidential but not a trade secret. The distinction between “confidential” and “trade secret” matters enormously in California, and it’s the trade secret line, not the contract language, that draws the real limit.
Clauses Barring Recruitment of Former Coworkers
Employee non-solicitation provisions—sometimes called no-poach or anti-raiding clauses—are also void under Section 16600. They restrict both your ability to compete and your former coworkers’ ability to seek better opportunities. California courts have consistently invalidated them, even narrowly drafted ones.
The reasoning is direct. If you work in recruiting or management, telling former colleagues about a better opportunity is part of how you do your job. A clause that blocks that activity restrains you from practicing your profession. The same analysis applies whether the clause names specific employees or bars you from recruiting anyone at your former company.1California Legislative Information. California Business and Professions Code 16600
Where Trade Secret Law Still Applies
The non-solicitation clause is void, but California still protects trade secrets. If a former employee uses genuinely protected information to solicit clients or recruit employees, the former employer may have a claim under California’s Uniform Trade Secrets Act (Civil Code Section 3426 et seq.). The claim rests on trade secret misappropriation, not on the contract language.
To qualify as a trade secret, information must derive independent economic value from not being generally known, and the owner must have taken reasonable steps to keep it secret. A customer list can qualify, but only if it contains information not readily ascertainable through public sources and the employer actually protected it. A list of names you could pull off LinkedIn almost certainly won’t clear that bar. Proprietary pricing strategies, specialized client requirements, or custom formulations are more likely to.
This is where most disputes actually land. Employers who can’t enforce a non-solicitation clause directly recast the claim as trade secret theft. Whether they succeed turns on the quality of the information and the steps the employer took to protect it, not on any contract language barring solicitation.
Active Solicitation Versus Passive Contact
Because trade secret claims can survive even when the clause doesn’t, how you make contact still matters in related disputes. Active solicitation means directly reaching out to a customer or employee and encouraging them to leave their current relationship. Calling a former client to pitch your new firm is active solicitation. Sending targeted emails to former coworkers about open positions at your new company qualifies as well.
Announcing a job change on LinkedIn, updating your professional website, or accepting a call from someone who heard through the grapevine that you moved is not solicitation. If a former client or coworker reaches out on their own, that’s their choice, not your recruitment effort. Courts look at who initiated contact and whether there was a deliberate effort to pull business or talent away from the former employer.
The Narrow Exceptions
Three statutory exceptions allow non-solicitation and non-competition restrictions. All three involve transfers of ownership, not ordinary employment.
Under Section 16601, someone who sells the goodwill of a business or all of their ownership interest in a business entity can agree not to carry on a similar business within the geographic area where the sold business operated. The restriction lasts only while the buyer or a successor keeps operating a similar business there.2California Legislative Information. California Business and Professions Code 16601 “Business entity” covers partnerships, limited partnerships, LLCs, and corporations.
Section 16602 provides a parallel exception for partners on partnership dissolution or dissociation, and Section 16602.5 does the same for LLC members on LLC dissolution or termination of a member’s interest.3California Legislative Information. California Business and Professions Code 166024California Legislative Information. California Business and Professions Code 16602.5 All three require geographic limits tied to the actual footprint of the business, and courts interpret them strictly. A clause reaching beyond the statutory boundaries is void even in these contexts.
If you signed a non-solicitation clause as part of buying a job, not as part of selling a business, none of these exceptions apply to you.
What You Can Do If an Employer Tries to Enforce One
Two laws that took effect January 1, 2024, gave workers real leverage against employers who try to enforce these clauses.
Section 16600.5 closed a loophole employers had used, arguing that a contract signed in another state or governed by another state’s law escaped California’s restrictions. The statute makes clear that any contract void under California law is unenforceable regardless of where or when it was signed, and an employer cannot try to enforce a void clause even if the contract was signed and the employment maintained outside California.5California Legislative Information. California Business and Professions Code 16600.5
The same statute created a private right of action. If your employer enters into or tries to enforce a void non-solicitation clause, you can sue for injunctive relief, actual damages, or both. If you win, you’re entitled to recover reasonable attorney’s fees and costs.5California Legislative Information. California Business and Professions Code 16600.5 The fee-shifting provision changes the calculus. An employer who threatens enforcement of a clause it knows is void now risks paying your legal bills.
Section 16600.1 added a separate obligation. AB 1076 required employers to send written, individualized notice by February 14, 2024, to any current or former employee employed after January 1, 2022, whose contract contained a void non-compete or non-solicitation clause. The notice had to be sent to the employee’s last known physical address and email address, informing them the clause was void. An employer who failed to send that notice committed an act of unfair competition under Section 17200, actionable by the attorney general, district attorneys, or private parties.6California Legislative Information. California Business and Professions Code 16600.1
You don’t need to wait for your employer to sue before acting. The existence of a void clause in your contract, combined with a failure to notify, is enough to trigger a claim.
One practical caution before you contact former clients or colleagues: check what you’re relying on. The clause can’t stop you, but using proprietary information that could qualify as a trade secret can expose you to a separate claim the void contract language has no bearing on.