By: Ari Lichterman, Esq.

Restrictive covenants are important tools for protecting client relationships, confidential information, and competitive positioning.  But in recent years they have faced increased scrutiny—particularly non-competes—exposing businesses to unnecessary risk.  As enforcement risks grow, many businesses are turning to non-solicitation agreements as a more viable alternative.

Non-solicitation agreements restrict former employees from soliciting clients or coworkers after separation.  Employers often invest substantial time and resources in recruiting, training, and developing employees, and they have a legitimate interest in retaining those investments.  Employees, in this sense, are valuable business assets.  Likewise, businesses devote considerable effort to building client lists and cultivating customer relationships, which often are central to long-term success.  Non-solicitation provisions aim to prevent former employees from capitalizing on relationships they developed on the employer’s behalf for their own competitive advantage.

While Maryland courts are scrutinizing these provisions more closely, carefully tailored non-solicitation agreements tied to legitimate business interests remain enforceable.  Below are practical tips for structuring compliant agreements under current Maryland law. 

Maryland’s Approach to Non-Solicitation Agreements

Under Maryland law, non-solicitation agreements are generally enforceable—but only if they are carefully drafted.  Courts apply traditional common law restrictive covenant principles and will uphold non-solicitation provisions when they are reasonable and narrowly tailored to protect a legitimate business interest. 

Maryland courts evaluate non-solicitation agreements under the familiar four-part test:

1. The employer must have a legally protected business interest;
2. The restriction must be no broader in scope or duration than reasonably necessary to protect that interest;
3. The agreement must not impose an undue hardship on the employee; and
4. The covenant must not violate public policy.

In practice, most disputes rise or fall on the second factor—whether the restriction is appropriately tailored.

Customer Non-Solicitation: Scope Matters

When courts assess customer non-solicitation provisions, they focus closely on who the former employee is prohibited from soliciting.  To be enforceable, the restriction should generally be limited to customers with whom the employee actually worked or developed a relationship during their employment. 

This limitation is critical because it aligns the restriction with the employer’s legitimate interest: preventing a former employee from exploiting the goodwill or relationships they helped build on the employer’s behalf.  By contrast, blanket prohibitions on soliciting any customer—regardless of whether the employee ever interacted with them—are routinely viewed as overbroad.

Employee Non-Solicitation: Relationship-Based Limitations

Maryland courts apply the same tailoring principles to employee non-solicitation provisions as they do to customer restrictions.  To be enforceable, an employee non-solicitation clause must be tied to actual workplace relationships the departing employee developed during their employment—not a blanket prohibition on soliciting any worker associated with the company.

A Recent Example: Blue Ridge Risk Partners, LLC v. Willem

The importance of narrow drafting was underscored in Blue Ridge Risk Partners, LLC v. Willem, 724 F. Supp. 3d 398 (D. Md. 2024). There, the U.S. District Court for the District of Maryland invalidated both customer and employee non-solicitation provisions.

The agreement prohibited the employee from attempting to “obtain, accept or in any manner transact business with, from, or on behalf of any Clients,” and defined “Clients” expansively to include any individual or entity solicited by anyemployee of the company within the preceding 12 months.  The court found this language overbroad for two key reasons:

• Passive acceptance of business. The restriction barred even the passive acceptance of work from the employer’s customers. The court emphasized that an employer’s legitimate interest is in preventing an employee from usingrelationships formed during employment to “pirate” customers—not in preventing customers from choosing to follow an employee on their own.
• Prospective customers. The provision also extended to prospective clients. The court rejected this as untethered to any protectable goodwill, reasoning that an employee cannot exploit relationships or goodwill that never existed in the first place. 

The court also struck down the employee non-solicitation provision as overbroad because it was not limited to employees with whom the former employee had any direct interaction but extended to all employees and independent contractors.  The court found this absence of relationship-based tailoring fatal, with the restriction on soliciting independent contractors underscoring the provision’s overbreadth.  Without evidence of interaction—even at trainings, conferences, or meetings—the employer lacked a legitimate interest in restricting solicitation with individuals with whom the employee had no meaningful relationship.

Practical Takeaways for Employers

Based on the analysis above, employers should consider the following key takeaways:

• Tailor restrictions to real relationships. Limit customer and employee non-solicitation provisions to individuals the departing employee actually worked with or knew.
• Distinguish solicitation from competition. Avoid language that prohibits passive acceptance of business or broadly restricts post-employment competition.
• Draft narrowly and precisely. Be cautious with prospective client restrictions, independent contractor coverage, and company-wide bans.
• Anchor every restriction to a legitimate business interest. The goal is to protect established relationships and staff—not to impose unnecessary restraints on employee mobility.

For businesses operating in this evolving landscape, thoughtful drafting on the front end is critical.  The attorneys at Luchansky Law can help you craft strategic, compliant non-solicitation agreements tailored to protect your business interests while minimizing legal risk.  I would welcome the opportunity to discuss with you how.  For more information, call me at Luchansky Law 410.522.1020, or email me at ari@luchanskylaw.com.