The Non-Solicitation Clause That Blocks Hiring Agency Staff
Nine months in, you know who is really doing the work: the account manager who answers on a Tuesday night when a post goes sideways. Eventually you wonder why you pay the agency instead of hiring her. Then you find the paragraph you skimmed at signing saying you cannot.
The clause hiding in plain sight
A non-solicitation clause bars you, the client, from recruiting or hiring the agency’s employees, and often its subcontracted freelancers, for a period that runs past the engagement. Narrow versions restrict soliciting them; broad ones restrict hiring them at all, even if the person approached you. It lives in the general terms near the back under a heading like restrictive covenants, which is why buyers reading for deliverables and price miss it. It is the one provision written to protect the agency against you, so read it alongside what else to check in the contract.
Why agencies write this into every contract
An agency’s product is staffed hours, and recruiting, training and keeping a strong social media manager is a cost it carries, not you. Picture, hypothetically, an agency that loses three of its best account leads to clients in a year: every account lands with whoever is left. Non-solicitation provisions are common across employment, consulting and business sale agreements, per Cornell’s Legal Information Institute. Boilerplate, not a signal about you.
What it usually covers, and what it usually doesn’t
| Who | Typical treatment | What decides it |
|---|---|---|
| Staff assigned to your account | Typically restricted | Inside any definition, however narrow |
| Subcontracted freelancers on your account | Typically ambiguous | Whether the definition says employees or contractors |
| Staff who never touched your account | Restricted under broad drafting only | Whole roster, or only who served you |
| Staff who resigned before you met them | Typically not restricted | Carve-outs for independent departures; whether an ad counts |
Patterns, not defaults: test every row against your own document. The heading tells you nothing; the definitions section decides everything, because a clause titled “Non-Solicitation of Employees” can define employees to include every freelancer the agency has paid, which matters once you know whether your agency subcontracts the work.
A hypothetical: the account manager you’d hire in a heartbeat
Say you are bringing social in house in ninety days and the obvious first hire is the person who has run your account all year.
Make the offer without opening the contract and the exposure is yours, not hers. A breach of contract claim runs against your company, and if the clause carries a liquidated damages provision, a sum agreed in advance, the agency need not prove what your hire cost it. The number is already written down, though courts will not impose liquidated damages that are punitive, illegal, unconscionable or contrary to public policy.
Call the agency owner first. Plenty would rather take a one time placement fee, or grant a release after a defined gap, than enforce a clause against a departing client, and that option closes the moment an offer is out. Different from what happens when that person leaves the agency on their own.
Is it even enforceable
No article can tell you whether your clause holds up. Enforceability is primarily governed by state law and varies considerably, according to Cornell’s Legal Information Institute, which notes a court may weigh the restriction’s duration, its scope, who it covers and whether it goes further than necessary to protect a legally recognised interest. Most of that law developed around clauses binding workers, while yours binds a company. The dangerous assumption is the confident one: a clause that reads as one sided is not therefore void. Pay a lawyer in your jurisdiction to read the actual paragraph.
How to negotiate a workable version before you sign
Cheap to fix now, expensive later. Four asks:
- Narrow it to your account. Cover only the specific people actually running your account, not the full roster.
- Put a hard number on the restricted period. Replace anything open ended, and say when the clock starts.
- Ask for a release instead of a ban. Propose a one time fee, fixed or a share of first year salary, that buys the person out.
- Check whether it runs both ways. Most drafts restrict only the client; ask whether the agency is equally barred from recruiting your staff.
What to do if you’re already under one
Sequence matters more than argument. Before any offer, or any conversation that could later be described as recruiting, ask the principal about a buyout or referral. If the hire is not urgent, waiting out the restricted period is the lowest risk path. If it is urgent, get legal review first.
Agencies you would not need to raid
Browse vetted agencies to build a shortlist of firms that staff senior people and negotiate their boilerplate without drama, and if you run an agency, list your agency free.
FAQ
Can a non-solicitation clause stop me from hiring a freelancer my agency subcontracts to?
Often yes, if the clause’s definition of the restricted group reaches contractors and not just salaried employees. Do not assume the narrow reading: check the defined term in your contract’s definitions section.
How long do these clauses typically last after the contract ends?
There is no norm worth quoting. The restricted period is set by the individual contract and varies from agency to agency, so a figure you read elsewhere tells you nothing about yours. Find the period written into your own clause, and check the start trigger: some run from termination of the agreement, others from the person’s last day on your account.
What happens if I hire the person anyway without checking?
The practical exposure is a breach of contract claim against the company that signed, not against the person you hired, plus whatever damages the agreement specifies, if any. Whether a claim gets brought, and how it would come out, turns on facts no general article can see. This is education, not legal advice, so have a lawyer read your clause first.
Is a non-solicitation clause the same as a non-compete clause?
No. A non-solicitation provision limits soliciting specified people or business relationships, while a covenant not to compete is an agreement not to engage in conduct that increases competition for the other party. Cornell’s Legal Information Institute calls non-solicitation the narrower of the two, since it ordinarily does not stop someone working for a competitor.
Sources
- Cornell LII: nonsolicitation agreement. Fetched 7 September 2026.
- Cornell LII: covenant not to compete. Fetched 7 September 2026.
- Cornell LII: liquidated damages. Fetched 7 September 2026.
