Non-compete and non-solicitation clauses are often bundled together in employment agreements, but they restrict fundamentally different conduct — and in states that heavily restrict non-competes, a well-drafted non-solicitation clause can still be enforceable.
Non-compete restricts where you can work
A non-compete prevents someone from working for a competitor or starting a competing business, generally within a defined geography and time period — the broadest and most heavily scrutinized type of restrictive covenant.
Non-solicitation restricts who you can contact
A non-solicitation clause doesn't stop someone from working in the same industry — it restricts them from soliciting the former employer's clients or employees for a period of time. Courts in states hostile to non-competes are often more willing to enforce these.
Why the distinction matters in drafting
Businesses in states where non-competes are heavily restricted or void often rely more heavily on well-drafted non-solicitation and confidentiality provisions instead — since those can accomplish much of the same protection without running into the same legal obstacles.
Both need to be scoped carefully
An overly broad non-solicitation clause — one that tries to restrict contact with any client the company has ever had, rather than clients the employee actually worked with — faces the same enforceability risk as an overreaching non-compete.