Minnesota Restrictive Covenants Update: What Constitutes Solicitation?

Quick Hits

• Although the Minnesota Legislature banned new noncompete agreements in 2023, nonsolicitation agreements remain valid and enforceable.
• The U.S. District Court for the District of Minnesota has ruled that the mere announcement of an employee’s new position does not violate a typical nonsolicitation agreement.
• The court also ruled, however, that when a communication goes beyond a mere announcement to an express solicitation of business, or even a reference to the employee’s new contact information, the communication may violate a nonsolicitation agreement.

Restrictive Covenants in Minnesota

In 2023, Minnesota banned employment noncompete agreements entered into on or after July 1, 2023. The law prohibits any agreement between an employer and an employee that limits the employee, after termination of employment, from performing work:

1. for another employer for a specified period,
2. in a specified geographical area, or
3. for another employer in a similar position as their prior employment.

The ban was not retroactive, did not apply to noncompete agreements that are part of the sale of a business or are in anticipation of the dissolution of a business, and expressly did not apply to nonsolicitation or confidentiality agreements.

Courts’ Approach to Nonsolicitation Agreements

In light of the ban on most new noncompete agreements, Minnesota employers are relying more than ever on confidentiality agreements and nonsolicitation agreements. Nonsolicitation agreements, in this context, typically do not restrict an employee from working for a particular employer or industry for a specified period after termination of employment, but instead simply state that during a “restricted period,” the employee may not solicit business from customers of his or her former employer.

When interpreting such agreements, issues can arise as to what exactly is a “solicitation.” While the state appellate courts have not yet addressed the issue in any depth, the U.S. District Court for the District of Minnesota has done so several times in the last decade, beginning prior to the 2023 noncompete ban and continuing forward. These decisions, read together, provide useful guidance as to when a communication crosses the line from a mere announcement to a solicitation of business.

First, in 2017, the district court examined two social media posts by a sales representative who had left a job with a portable storage business to work for a direct competitor. In those posts, the employee not only announced her new employment and described her new employer’s business, but also asked readers to “call me today” for a quote. The federal court granted the former employer’s motion for a preliminary injunction, holding in part that the purpose of the posts was to “entice members of her network,” which included customers of her former employer, to call her for the purpose of making sales in her new position. The court held that those posts were “blatant sales pitches,” and “not mere status updates.” As such, the court enjoined the employee from creating any similar social media posts, unless they were “mere status updates listing her place of work and contact information.”

In 2022, the federal court decided a motion to dismiss a claim that two former employees of the plaintiff school yearbook company had violated their nonsolicitation agreements by posting a video on social media. In that video, they invited viewers to email them if the viewers needed help with their school’s yearbook program. Citing the above 2017 decision, the court ruled the video was intended to entice members of the employees’ networks, including the former employer’s clients, to call them for the purpose of making sales. Therefore, the court denied a motion to dismiss the plaintiff employer’s claim for breach of contract.

Most recently, in June 2025, the district court revisited the issue in a case where the wealth management division of a national bank asserted that three of its former employees had contacted a total of twenty-four of the bank’s wealth management clients on behalf of their new employer. The plaintiff asserted that those contacts violated the defendants’ agreements not to solicit their former clients or induce them to take their business away from the plaintiff, and sought a temporary injunction.

In addressing the merits of the case, the court first stated that “solicitation or inducement requires an invitation or encouragement,” or “some element of attempted persuasion.” Therefore, the court reasoned, “solicitation does not occur when a client initiates contact with the former employee … or when the employee merely offers a neutral announcement of their new employer to their clients.” Based on that statement of the law, the court held that one of the defendant employees had violated his nonsolicitation agreement when he offered to facilitate the transfer of a client’s account to his new employer and had disparaged the former employer.

The court went on, however, to hold that the plaintiff had not shown any improper solicitation by the other two defendant employees, because the evidence against the defendants failed to establish any “encouragement.” Moreover, the court rejected the plaintiff’s argument that the defendants’ mere announcement of their new position constituted an impermissible solicitation. The court cautioned, however, that in determining whether an announcement crossed the line to become a solicitation, “the devil lies in the details.” Further explaining, the court noted that an announcement could become a solicitation if, for example, the announcement included the employee’s new contact information.

Read together, these cases make it clear that an employee’s announcement, whether by social media or otherwise, of his or her new employment, in and of itself, does not constitute a “solicitation” in violation of a standard nonsolicitation agreement. On the other hand, a request for business would clearly violate most such agreements.

As this area of law continues to develop, employers may want to be particularly aware of their new hires’ nonsolicitation agreements and other obligations to their former employers. Employers may also wish to advise new hires who are subject to nonsolicitation agreements that their social media posts and other communications do not cross the line from “announcement” to “solicitation.”

Ogletree Deakins’ Minneapolis office will continue to track developments and will publish updates on the Minnesota and Unfair Competition and Trade Secrets blogs as more information becomes available.

Andrew E. Tanick is a shareholder in the Minneapolis office of Ogletree Deakins.

Anna J. Erickson is a law student currently participating in the summer associate program in the Minneapolis office of Ogletree Deakins.

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