How Are Non-Competes and Non-Solicitation Agreements Different?

What a Non-Compete Actually Restricts

A non-compete generally prohibits someone from working for a competing business, or starting one themselves, within a defined geographic area and time period. It restricts the activity itself, competing in the relevant market, regardless of whether any specific customer or employee is ever contacted.

Because it restricts an entire category of work, a non-compete is generally viewed as the more restrictive of the two tools, and Arizona courts scrutinize it closely under the reasonableness framework from Amex Distributing Co. v. Mascari (1986).

What a Non-Solicitation Agreement Actually Restricts

A non-solicitation agreement is narrower. Rather than barring someone from working in the industry at all, it generally restricts them from actively soliciting the former employer’s customers, clients, or employees for a defined period, someone could work for a competitor entirely, so long as they do not solicit specific protected relationships.

This narrower scope is exactly why non-solicitation agreements are often easier to enforce than broad non-competes, they leave the person’s general ability to work in the field intact, restricting only specific, targeted conduct tied directly to the employer’s legitimate relationships.

Customer Non-Solicitation vs. Employee Non-Solicitation

Non-solicitation provisions often come in two forms, sometimes combined in a single agreement. A customer non-solicitation clause restricts contacting the employer’s clients or customers, while an employee non-solicitation clause restricts recruiting the employer’s remaining staff to join a new venture.

Both types are generally evaluated under similar reasonableness principles, focused on whether the restriction reasonably protects a legitimate interest, existing customer relationships or workforce stability, without being broader than necessary.

Why Courts Often View Non-Solicitation Agreements More Favorably

Because a non-solicitation agreement does not prevent someone from earning a living in their field entirely, only from targeting specific protected relationships, courts often view it as a more measured, proportionate way to protect a legitimate business interest compared to a broad non-compete.

This does not mean non-solicitation agreements are automatically enforced, they are still evaluated under the same general reasonableness principles, an overly broad or indefinite non-solicitation restriction can still be challenged.

Can an Agreement Include Both?

Yes, many agreements combine a non-compete and a non-solicitation provision in the same document, or use a non-solicitation clause as a fallback if a broader non-compete provision is ultimately found unenforceable. This layered drafting approach is common in practice.

Each provision is generally still evaluated on its own terms, a court might strike down an overly broad non-compete clause while still enforcing a narrower, more reasonable non-solicitation clause within the same document.

What Actually Counts as Solicitation

Whether specific conduct qualifies as prohibited solicitation is often a fact-intensive question. Directly reaching out to a former client to pitch new business is a clear example. A former client independently choosing to follow someone to a new company, without any active outreach, presents a much harder question.

This distinction, active solicitation versus a customer’s independent choice, is frequently at the center of disputes over whether a non-solicitation agreement was actually violated.

Practical Considerations for Employers Choosing Between the Two

• A broad non-compete offers stronger protection but faces the highest enforceability risk.
• A non-solicitation agreement is often more reliably enforceable, while still protecting key relationships.
• Combining both, with the non-solicitation clause as a fallback, is a common and reasonable drafting strategy.
• The right choice depends on the specific role and what interest actually needs protecting.