Are non-solicitation clauses enforceable in freelance contracts in Colorado?

Non-solicitation clauses are generally unenforceable in Colorado under C.R.S. § 8-2-113. Unless a clause meets extremely narrow statutory exceptions—such as protecting trade secrets or applying to highly compensated workers—it is void. Including such clauses can trigger severe statutory penalties for the drafting party.

The Legal Landscape: Colorado's Stance on Restrictive Covenants

Colorado has shifted from a state that allowed reasonable restrictive covenants to one of the most aggressive jurisdictions in the U.S. regarding worker mobility. The Colorado Restrictive Employment Agreement Act (CREAA) fundamentally altered the enforceability of non-solicitation and non-compete agreements.

For freelancers, this means that any clause attempting to prevent you from soliciting a client's customers or employees is likely void on its face. The law does not distinguish between employees and independent contractors; both are protected under the umbrella of "workers."

Key takeaway: If your contract contains a broad non-solicitation clause, it is likely unenforceable and potentially subjects the hiring party to statutory fines.

Action item: Review your current freelance agreements for any language that restricts your ability to work with former clients or contact their staff. If found, do not assume it is binding.

Statutory Exceptions: When Might a Clause Be Enforceable?

While the default rule is invalidity, there are limited exceptions. For a non-solicitation clause to survive legal scrutiny in Colorado, it must meet specific criteria:

• Trade Secret Protection: The restriction must be no broader than necessary to protect the employer’s legitimate interest in trade secrets.
• Highly Compensated Workers: The worker must meet specific salary thresholds defined by the Colorado Department of Labor and Employment (CDLE).
• Reasonableness: The clause must be reasonable in scope, duration, and geographic reach.

Even if these exceptions are met, the burden of proof lies entirely on the party seeking to enforce the clause. They must demonstrate that the restriction is narrowly tailored to protect a legitimate business interest.

Action item: If a client insists on a non-solicitation clause, ask them to identify the specific trade secrets they are trying to protect. If they cannot, the clause is likely unenforceable.

The Risks of Including Void Clauses

Colorado law is not just about unenforceability; it is about deterrence. Under C.R.S. § 8-2-113, an employer or client who enters into, presents, or attempts to enforce a void restrictive covenant commits a violation. The penalties include:

1. Statutory Fines: $5,000 per violation.
2. Actual Damages: Liability for any economic harm caused to the worker.
3. Attorney Fees: The prevailing worker is entitled to recover reasonable attorney fees and costs.
4. Criminal Liability: In extreme cases, intentional violations can lead to criminal charges.

This "fee-shifting" provision is designed to empower freelancers to challenge restrictive contracts without the fear of prohibitive legal costs.

Action item: If you are being threatened with a lawsuit for violating a non-solicitation clause, consult with a Colorado employment attorney immediately to discuss your rights to recover fees.

How to Evaluate Your Freelance Contracts

When reviewing a contract, look for "red flag" language that attempts to bypass Colorado law. Common tactics include:

• Choice of Law Clauses: Attempting to apply the laws of a different state (e.g., Delaware or New York) to circumvent Colorado's protections.
• Liquidated Damages: Setting a high dollar amount for "breach" of a non-solicitation clause to intimidate the freelancer.
• Overly Broad Definitions: Defining "solicitation" to include any contact, even if it is not business-related.

Action item: Use a contract analysis tool to flag these specific clauses. Identifying them early allows you to negotiate their removal before signing.

Conclusion

Colorado law provides robust protections for freelancers against restrictive non-solicitation clauses. Because these clauses are largely void, you have significant leverage to negotiate their removal from your service agreements. Understanding your rights under C.R.S. § 8-2-113 is the first step in protecting your professional mobility.

TermScore can automatically analyze your freelance contracts to identify unenforceable non-solicitation clauses and other restrictive covenants, providing you with instant insights into your legal risks before you sign.