A non-solicitation clause is not automatically a non-compete — but whether it is treated as one depends on what it actually restricts. D.C. Code § 32–581.01(15) defines a “non-compete provision” as one prohibiting an employee from performing work for another for pay or operating their own business, and expressly excludes restrictions on confidential and proprietary employer information. A term drawn around information sits outside the ban; a term drawn so broadly that it stops someone working may not.
What the Act actually restricts
“Non-compete provision” means a provision in a written agreement or a workplace policy that prohibits an employee from performing work for another for pay or from operating the employee’s own business. The term “non-compete provision” does not include an otherwise lawful provision: (A) Contained within or executed contemporaneously with an agreement between the seller of a business and one or more buyers of that business wherein the seller agrees not to compete with the buyer’s business; (B) That prohibits or restricts an employee from: (i) Disclosing, using, selling, or accessing the employer’s confidential employer information or proprietary employer information; (ii) Accepting money or a thing of value for performing work for a person other than the employer, during the employee’s employment with the employer, because the employer reasonably believes the employee’s acceptance of money or a thing of value under such circumstances will: (I) Result in the employee’s disclosure or use of confidential employer information or proprietary employer information; (II) Conflict with the employer’s, industry’s, or profession’s established rules regarding conflicts of interest; (III) Constitute a conflict of commitment if the employee is employed by a higher education institution; or (IV) Impair the employer’s ability to comply with District or federal laws or regulations; a contract; or a grant agreement; or (C) That provides a long-term incentive. (16) “Proprietary employer informati…
D.C. Code § 32–581.01(15)
Read the opening words rather than the label on the clause. The question is whether the restriction prevents working for pay or running a business — not whether the heading says non-solicitation.
Why the information theory is usually stronger
“Proprietary employer information” is defined to include customer lists and client lists, as well as trade secrets under § 36–401(4). A restriction on using that information is excluded from the ban and is supported by the full remedies of the Trade Secrets Act — injunction under § 36–402, damages and exemplary damages under § 36–403, fees under § 36–404.
See trade secret misappropriation and NDA and confidentiality disputes.
Deadlines
| Claim | Period | Section |
|---|---|---|
| Simple contract, express or implied | 3 years | § 12–301(7) |
| Injury to personal property | 3 years | § 12–301(3) |
| Libel or slander | 1 year | § 12–301(4) |
| Not otherwise specially prescribed | 3 years | § 12–301(8) |
Trade secret claims run separately — 3 years from discovery under § 36–406, with a continuing misappropriation treated as a single claim.
Frequently asked questions
Is a non-solicitation clause banned in DC?
Not by name. § 32–581.01(15) defines what counts as a non-compete provision, and restrictions on confidential and proprietary information are excluded. How the clause is drawn decides how it is analyzed.
Can we stop a former employee contacting our clients?
The strongest route is usually the information one, because client lists are proprietary employer information under § 32–581.01 and may be trade secrets under § 36–401(4).
What about employees who left before October 2022?
§ 32–581.02(a)(2) addresses agreements entered into on or after 1 October 2022. Earlier agreements raise different questions.
Does it matter if the client approached them?
It can matter a great deal to both the drafting and the claim. The distinction between soliciting and accepting is one the clause should address explicitly.
Who is a covered employee for the purposes of the ban?
Under D.C. Code § 32–581.01, an employee who is not a highly compensated employee and who either spends more than 50% of working time for the employer in the District, or whose employment is based in the District with a substantial amount of work time here and not more than 50% in another jurisdiction.
When did the current rules take effect?
October 1, 2022. D.C. Code § 32–581.02(a)(1) applies from that date, and a non-compete provision in an agreement entered into on or after it that violates the section is void as a matter of law.
Where is a claim about client solicitation brought?
In the Superior Court of the District of Columbia under D.C. Code § 11–921. Where the conduct involves confidential information, the same proceeding can carry a claim for injunctive relief under § 36–402.
How does a company protect its client relationships without a non-compete?
By relying on what the Act leaves intact. The statutory definition of a non-compete excludes a provision restricting an employee from disclosing, using, selling or accessing the employer’s confidential or proprietary information, which is why the information claim usually does the work.
How much is a non-solicitation clause worth if it is not a non-compete?
Its value is that it survives. Because the § 32–581.01 definition excludes confidentiality and proprietary-information terms, a clause drafted around information rather than around employment remains available where a covered-employee non-compete would be void and unenforceable.
Sources and legal authorities
- D.C. Code § 32–581.01 — Definitions
- D.C. Code § 32–581.02 — Prohibition for covered employees
- D.C. Code § 36–401 — Trade secret definitions
- D.C. Code § 36–402 — Injunctive relief
- D.C. Code § 12–301 — Limitation of actions
General information about D.C. law, not legal advice. Which rule applies depends on the entity, the agreement and the facts.
Related: Unfair Competition · Non-Compete Disputes · NDA / Confidentiality Disputes · Trade Secret Misappropriation · Business Litigation. Call (301) 901-3109 or use the contact page.