Non-Solicitation Agreements in New Jersey Explained

An employee can leave for a competing company and keep working in the same field, but still face a lawsuit over one phone call to a former client. That’s the non-solicitation agreement kicking in, the one they signed when they were hired and subsequently forgot about. They’re frequently included in the fine print of offer letters, commission plans, or severance packages, sometimes alongside confidentiality and non-compete language.

Because these restrictions frequently appear together, employees and employers sometimes treat them as interchangeable. New Jersey law, in particular, doesn’t. The wording, the relationships it protects, and what the employee did all affect whether a court will enforce it.

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What a Non-Solicitation Agreement Restricts

A non-solicitation agreement limits whom a former employee may actively approach after leaving. Depending on the wording, the restricted group might include customers and prospective customers the employee personally pursued. It could also cover referral sources, vendors, current employees, or coworkers who left recently.

Normally, a non-solicitation agreement doesn’t stop the former employee from taking a job with a competitor or continuing to work in the same industry. It targets relationships, not employment itself. But unusually broad language can blur the lines.

A clause that bars an employee from accepting work from any former customer, including one who calls the employee unprompted, starts functioning like a non-compete. The name of the provision doesn’t matter to the courts; it’s what it does that counts.

How a Non-Solicitation Clause Differs From a Non-Compete

A non-compete restricts the work itself. It might name competing employers, a geographic area, or a period during which any competitive work is off-limits. A non-solicitation clause lets the employee keep competing but limits specific outreach instead. Let’s say a salesperson leaves one company and joins another in the same market. A typical customer non-solicitation agreement may bar them from contacting specified accounts they serviced or developed for the former employer.

That doesn’t always mean a court will enforce it, though. A clause covering every customer the company has ever served worldwide can burden someone almost as much as a regional non-compete would, even including accounts the employee never touched. Scope is much more of a deciding factor than the title of the document.

New Jersey’s Court-Made Reasonableness Test

New Jersey hasn’t passed a statute covering non-competes or non-solicitation agreements. Courts still evaluate both under restrictive covenant principles built through case law, starting with Solari Industries, Inc. v. Malady. A covenant is generally enforceable if it protects a legitimate employer interest, doesn’t impose undue hardship on the employee, and doesn’t harm the public.

Whitmyer Bros., Inc. v. Doyle refined what counts as a legitimate interest. An employer has no protectable interest in stopping ordinary competition on its own. But protecting trade secrets, confidential information, and customer relationships are a different story.

The employer in Whitmyer still lost, though. It was claiming trade secrets and customer relationships that didn’t hold up to court scrutiny, and the former employee denied harboring any protected information.

Despite the employer losing the case for using it, the rule itself survived, and that’s the real lesson here. Citing a legitimate interest is only the starting point. An employer still has to connect the employee, the specific relationships, and the actual harm.

What Makes a Non-Solicitation Agreement More Enforceable

Courts look beyond the agreement’s wording into the employee’s real position. The outcome usually hinges on a few of the following questions:

Does the agreement cover the company’s entire customer database, or just the ones that employee specifically served?
How long does the restriction last, and does that period match how long the relationship stays valuable?
Did the employee have direct contact with people they’re now barred from reaching?
What does “solicitation” mean? Does it only apply to active outreach, or does it also cover accepting unprompted calls?

It’s much easier to justify a company placing a one-year restriction on accounts the employee personally serviced over the last two years than an indefinite, blanket ban covering the entire client roster. The former has a much stronger, more visible tie to the company’s interests. The latter doesn’t.

Some agreements also try to stretch the definition of “solicit” beyond what’s reasonably justifiable in a court’s eyes. Extending it to cover responding to incoming, unprompted calls or working somewhere that happens to serve the former employer’s clients might be a tad beyond justifiable.

Client Restrictions vs. Employee Anti-Raiding Clauses

One agreement can contain two separate promises. A client non-solicitation clause limits outreach to customers or referral sources, and the enforceability question usually turns on the employee’s actual relationship with those accounts. An employee non-solicitation clause, sometimes called an anti-raiding clause, limits recruiting former coworkers instead. Here the employer’s interest is workforce stability rather than customer goodwill.

Either version can become overbroad. Barring an employee from recruiting anyone at the company, including people they never met or supervised, goes well past protecting a real team the employee built.

Courts May Narrow, Not Void, an Overbroad Agreement

There’s nuance in how New Jersey courts treat these agreements. An overreaching covenant isn’t always entirely valid or entirely dead. Under Solari, a court can limit an agreement to the part that protects the employer’s legitimate interest. This is partial enforcement, sometimes loosely called blue-penciling, although New Jersey does not require the agreement to pass a strict mechanical blue-pencil test. A restriction covering five states might get narrowed to the accounts the employee handled; a five-year term might get cut down if the evidence only supports a much shorter one.

But that decision is up to the court. Employers can’t assume a judge will fix an aggressive agreement for them. It’s always safer for an employer to start from a narrower draft, which also gives them more room for legitimate injunctions.

Pending Legislation Could Still Change the Rules

New Jersey lawmakers have tried repeatedly over the years to limit non-competes and no-poach agreements, with mixed results so far. The most recent version, Assembly Bill A1829, would ban most non-competes outright while declaring no-poach agreements between employers void as against public policy. It does not generally prohibit customer or employee non-solicitation agreements. In fact, it identifies narrowly drafted non-solicitation clauses as possible alternatives to a non-compete

None of this has been enacted. Until it is, disputes over ordinary non-solicitation agreements still turn on the Solari and Whitmyer standards, and a pending bill can change substantially before it becomes law.

Agreements Between Employers Raise a Separate Antitrust Problem

Of course, two competing companies can agree not to recruit each other’s workers, and that’s a completely separate issue. The DOJ and FTC’s January 2025 Antitrust Guidelines for Business Activities Affecting Workers treat these no-poach arrangements as a potential federal antitrust violation, with criminal exposure possible in some cases. No employee has to sign anything for this to apply.

The employers themselves agree to reduce competition for labor. Sometimes they do that formally. Other times it’s all based on an informal understanding. A single non-solicitation clause between one employer and one employee stays a state contract question. Coordination between separate companies is what pulls in federal enforcement instead.

Common Questions About Non-Solicitation Agreements in New Jersey

Can a non-solicitation agreement stop me from joining a competitor?

Usually not by itself. A conventional clause limits outreach to specified clients or employees. Blocking you from accepting a job with a competitor outright is functioning as a non-compete instead, and courts will treat it as such. Read the whole document. Employers often stack non-solicitation, non-compete, and confidentiality provisions into one agreement.

Does it change anything if I signed it after I already started the job?

Timing plays a role, but the absence of a new raise or bonus doesn’t automatically void the agreement. In Hogan v. Bergen Brunswig Corp., the Appellate Division found sufficient consideration where the employee kept working for roughly three years after signing a customer non-solicitation restriction, holding that continued employment itself can supply the consideration a post-hire covenant needs.

Can the agreement still apply after a layoff or a business sale?

Often, yes, though the reason employment ended can change the undue-hardship analysis. A worker let go without cause may have a stronger hardship argument. Someone who resigned to join a direct competitor and immediately called old accounts has a much weaker one. It’s always worth reviewing a restriction like this alongside the rest of a severance package. Restrictions tied to a business sale get even more latitude, since the seller was usually paid for protecting customer goodwill.

Read the Agreement Before the Relationship Ends

Pull the actual document before contacting former customers, announcing a new job, or recruiting old coworkers. The line between active outreach and just accepting an unprompted call can decide whether ordinary networking turns into a dispute. Employers should aim the restriction at relationships that truly need protecting. A clause tailored to the accounts an employee knew, with a realistic time limit, works far better than one written to cover every conceivable future conflict.

Choosing the right attorney for a review like this means finding someone who can evaluate both the contract language and the evidence a court would need before enforcement becomes a real fight.