Non-Solicitation Disputes in Washington, DC

Name: Waxman Litigation — Chevy Chase office
Address: 5425 Wisconsin Ave Ste 600, Chevy Chase, MD, 20815, US

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)

Source: D.C. Code § 12–301. Accrual is a fact question — confirm your date with counsel.

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?

It is not banned 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, not the restraint. 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?

The statute addresses agreements entered into on or after 1 October 2022. Earlier agreements raise different questions. See § 32–581.02(a)(2).

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?

A covered employee is one who is not a highly compensated employee and who works mainly in the District. That means either spending more than 50% of working time for the employer here, or being based here with a substantial amount of work time in the District and not more than 50% in another jurisdiction. See D.C. Code § 32-581.01.

When did the current rules take effect?

The rules took effect on October 1, 2022. A non-compete provision in an agreement entered into on or after that date which violates the section is void as a matter of law. See D.C. Code § 32-581.02(a)(1).

Where is a claim about client solicitation brought?

It is brought in the Superior Court of the District of Columbia. Where the conduct involves confidential information, the same proceeding can carry a claim for injunctive relief as well. See D.C. Code §§ 11-921 and 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

General information about D.C. law, not legal advice. Which rule applies depends on the entity, the agreement and the facts.