How can I tell if my NDA is actually a non-solicitation agreement?

Look for broad definitions of 'Confidential Information' that include client lists, employee identities, or business relationships. If the NDA prohibits contact with these parties even without using proprietary data, it functions as a de facto non-solicitation agreement.

Are non-solicitation agreements enforceable?

Enforceability varies by jurisdiction. States like California generally ban non-solicitation agreements for employees, while others allow them if they are narrowly tailored to protect legitimate business interests.

What should I do if my NDA contains restrictive non-solicitation language?

Request a carve-out for general solicitation, ensure the definition of 'confidential' is limited to trade secrets, and consult with an employment attorney to assess the clause's validity under local law.

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How to tell if your employment NDA is being used as a disguised non-solicitation agreement

How to Identify Disguised Non-Solicitation Clauses in Your NDA

An NDA is disguised as a non-solicitation agreement when it defines 'confidential information' to include client identities or employee contact lists, effectively barring you from doing business with or hiring former colleagues. If the clause restricts contact regardless of whether proprietary data is used, it is a restrictive covenant.

The Anatomy of a Trojan Horse Clause

Employers often embed restrictive covenants within NDAs to bypass state laws that limit non-compete and non-solicitation agreements. By labeling these restrictions as 'confidentiality obligations,' they attempt to make them enforceable even in jurisdictions where traditional non-solicitation agreements are void.

Red Flags in Your NDA Language

Overbroad Definitions: The contract defines 'Confidential Information' to include the names, contact details, or preferences of customers, vendors, or employees.
Non-Use Clauses: The agreement prohibits you from 'using' or 'disclosing' information that is essentially public knowledge, such as the fact that a company has clients.
Non-Interference Language: The contract includes a 'non-interference' or 'non-inducement' clause that prevents you from contacting anyone associated with the company for a period of 12 to 24 months.
Liquidated Damages: The NDA includes a specific dollar penalty for contacting a client, which is a hallmark of a restrictive covenant rather than a standard confidentiality agreement.

Key takeaway: If your NDA restricts your ability to interact with people rather than protecting specific trade secrets like formulas or source code, it is likely a disguised non-solicitation agreement.

Comparison: Standard NDA vs. Disguised Non-Solicitation

Feature	Standard NDA	Disguised Non-Solicitation
Primary Goal	Protect trade secrets	Restrict competition/hiring
Scope	Specific proprietary data	Client lists and employee rosters
Duration	Indefinite or long-term	Usually 6 to 24 months
Enforcement	Injunctive relief	Damages and non-compete style bans

Jurisdictional Realities

The enforceability of these disguised clauses depends heavily on your state. In California, under Business and Professions Code Section 16600, almost any restraint on trade is void. However, employers in other states may argue that 'protecting confidential information' is a legitimate business interest that justifies the restriction.

Steps to Evaluate Your Risk

Audit the Definitions: Highlight every instance where 'client,' 'customer,' or 'employee' is mentioned in the confidentiality section.
Check for 'Reasonableness': Does the clause have a geographic limit? If it applies globally, it is likely unenforceable.
Assess the 'Legitimate Interest': Ask if the information being protected is truly a trade secret. If the client list is publicly available on LinkedIn, it is not a trade secret.
Review Severability: Check if the contract has a 'severability' clause, which allows a court to strike out the illegal portion while keeping the rest of the NDA intact.

How to Respond to Overreaching Clauses

If you identify these clauses, you have several options. First, request a 'carve-out' that explicitly states the NDA does not prohibit general solicitation of business or employment. Second, negotiate a time limit if one is missing, as indefinite restrictions are rarely upheld. Finally, ensure the definition of 'Confidential Information' is limited to actual trade secrets, excluding general industry knowledge or professional contacts.

Key takeaway: Never sign an agreement that treats your professional network as the employer's property. Always seek to narrow the scope to protect only genuine, non-public technical or financial data.

Automated Contract Analysis

Manually reviewing every clause in an employment contract is prone to human error. TermScore uses advanced AI to scan your agreements for disguised non-solicitation language, overbroad confidentiality definitions, and other restrictive covenants that could limit your future career mobility. By uploading your document to TermScore, you receive an instant, plain-English breakdown of your risks, allowing you to negotiate with confidence and clarity.