Keep talent on board with a non-solicitation clause

A non-solicitation clause prohibits a departing employee from poaching colleagues for a new employer. The clause is not defined by law, but is sometimes viewed as a form of non-competition clause — and must then meet the requirements of Article 7:653 of the Dutch Civil Code: in writing, with an adult employee and, in the case of a temporary contract, with a written justification. Due to the tight labor market, more and more employers are including such a clause. Below, you can read when it holds up and what you should look out for.

What is a non-solicitation clause?

A non-solicitation clause prohibits a former employee from approaching or persuading the former employer's staff to switch or terminate their contract. It usually applies for a specific period after the end of employment. Employers use it to protect their “human capital,” often in combination with a non-compete and non-solicitation clause.

Particularly in sectors where specific knowledge is scarce or where there is heavy investment in young talent, such a clause is valuable: it helps retain key personnel and protects against the loss of competitive advantage.

Non-solicitation clause or non-competition clause?

The non-solicitation clause is not defined in the law, but that does not mean it is exempt from formal requirements. Judges have ruled that a non-solicitation clause sometimes qualifies as a variant of a non-competition clause. Whether this is the case depends on the employee's duties and exactly what the clause restricts. For a recruiter, whose work consists precisely of approaching people, a non-solicitation clause is less likely to be valid, because it affects his core activity.

What requirements must the clause meet?

the clause qualifies as a non-competition clause, the requirements of Article 7:653 of the Dutch Civil Code apply:

• Agreed in writing: preferably include the clause in the signed employment contract itself. The Supreme Court has accepted that it can also be valid in a later, separately signed document.
• Adult employee: the clause cannot be validly agreed upon with a minor.
• Justification for temporary contracts: for a fixed-term employment contract, a written justification is mandatory, in which you explain the compelling business interests. If this justification is missing, the clause is invalid. For contracts of indefinite duration, a justification is not required for validity.

The rules surrounding non-compete clauses are slated for modernization; this may also have implications for anti-solicitation clauses. Check the current state of legislation before drafting a clause.

What applies after the end of employment?

The non-solicitation clause remains in effect after the termination of the employment contract , usually for the period specified in the clause. That period must be clearly and unambiguously defined. If you wish to sanction a violation with a fine, that penalty clause must already be included in the original agreement.

Upon departure, you can agree in a settlement agreement to waive the clause or limit its duration — for example, if the employee becomes a recruiter and the clause would disproportionately affect him. Such agreements are valid, but seek proper advice.

Frequently asked questions about the non-solicitation clause

What is the difference compared to a non-compete clause?

A non-solicitation clause prohibits contact with clients and business associates; an anti-poaching clause specifically targets the poaching of personnel. Both protect different interests and are often included alongside each other.

How long may a non-solicitation clause last?

The law does not specify a fixed maximum duration, but the period must be reasonable in relation to the interest to be protected. Excessive or overly broad scope may be limited or struck down by the court. A duration of, for example, one year is more common than several years.

Can a judge moderate the clause?

Yes. A judge may wholly or partially annul an (overly broad) non-compete or anti-solicitation clause or reduce an associated penalty, for example if the employee is unfairly disadvantaged by it. A well-substantiated, proportionate clause is more likely to stand up in court.

Have a custom anti-solicitation clause drafted

Every company is unique. The legal experts at MKB Juristen draft non-solicitation clauses that meet all legal requirements and align with your specific business interests, and also assist you with settlement agreements. View our employment law or schedule a no-obligation intake.