What is Non-Solicitation (No-Poach)?
Non-Solicitation (No-Poach) is a contractual provision restricting a party from soliciting (recruiting) the employees, contractors, or customers of another party — typically the other party to a contract. Common in employment agreements, M&A deals, supplier contracts, and NDAs. The clause aims to protect investments in workforce and customer relationships.
Types of non-solicitation
- Employee non-solicit: Cannot recruit specific company’s employees
- Customer non-solicit: Cannot pursue specific customers
- Mutual no-hire: Both parties agree not to hire from each other (more restrictive than non-solicit)
- Wage-fixing: Coordinated suppression of employee compensation (explicitly anti-competitive)
Typical terms
- Duration: 12-24 months post-employment or post-contract
- Scope: All employees, or specific level (e.g., VP+, engineers above L4)
- Carve-outs: Public job postings (general solicitation), responses to employee-initiated inquiries
- Geographic: Industry-wide or specific markets
- Liquidated damages: Predetermined penalty (often equivalent to 1 year of employee’s salary)
Antitrust risk (US perspective)
2010s and 2020s US Department of Justice (DOJ) and FTC have aggressively pursued no-poach agreements as antitrust violations:
- Civil: Adobe, Apple, Google, Intel, Pixar 2010 settlement (DOJ) — $415M class action settlement
- Criminal: 2016+ DOJ position: standalone no-poach agreements can be criminal violations of Sherman Act Section 1
- FTC 2024 Non-Compete Ban Attempt: Proposed ban on non-compete clauses (judicially blocked but signals direction)
- Recent enforcement: Anesthesia industry no-poach prosecutions (2024)
Enforceability in Türkiye
Turkish Code of Obligations (TBK) Madde 444-447 regulates competition restrictions:
- Employee non-compete: must be limited (max 2 years), geographic + scope reasonable, written; can be enforced via injunction + damages
- Employee non-solicit: relatively standard, enforceable with similar limits
- 4054 sayılı Rekabetin Korunması Hakkında Kanun (RKHK) açısından: kartel benzeri no-poach anlaşmaları (rakipler arası) rekabet ihlali sayılabilir
- Rekabet Kurulu son yıllarda işveren-bazlı rekabet kısıtlamalarına ilgi gösterdi
M&A context
Non-solicit is standard in:
- Term sheet / NDA: Pre-deal protection during due diligence
- SPA (Stock Purchase Agreement): Seller can’t poach employees post-closing
- Founder employment: Acquirer’s standard employment terms
- Limited Partner Agreement: VC fund non-solicit of portfolio CEOs
Best practices
- Time-limit to 12-18 months (not “perpetual”)
- Scope to identified executives + senior engineers, not all employees
- Allow public job postings + employee-initiated inquiries
- Avoid “no hire” — only “no solicit”
- Mutual rather than one-sided when between competitive companies
- Get clear scope on “indirect” solicitation via recruiters/connections
Practical implications for founders
For Turkish startups: (1) Standardize employment agreement non-solicit (12-18 months); (2) In M&A, negotiate carve-outs for hires the acquirer specifically doesn’t want; (3) Avoid wage-fixing agreements absolutely (criminal exposure under both Turkish + US/EU law); (4) Document independent recruiting processes to defend against breach claims. Vircon Legal advises on employment law + M&A non-solicit clauses.